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Equitable Utilisation / 143 144 / International Watercourses Law and Its Application in South Asiaabsence of a law protecting the interests of developingcountries in the above situation, equity has played a vital role instrengthening their interests in international trade and business.3.7.2 Corrective Equity as Analysed to ContinentalShelf AllocationIn the equitable delimitation of the continental shelf underspecial geographical and hydrological circumstances, correctiveequity has been a milestone in ensuring fair justice and theprotection of the national interests. Initially, such disputes wereresolved by application of the conventional rule ofequidistance, under article 6(2) of the 1958 Geneva Conventionof the Law of the Continental Shelf. The application of this rulerequires states to render agreement applying the equidistanceformula. This rule, however, also contained an ‘escape clause’,allowing delimitation to depart from the equidistant line under'special circumstances’. This is an example of correctiveequity. 116 Such a formulation of equity was implemented in the1969 North Sea Continental Shelf Cases between Germany v.Denmark and the Netherlands. 117 The court, in its decisionrejected the contention of the Danes and the Dutch, which werebased on the equidistance principle. The German contentionbased on a just and equitable share of the shelf was thatequidistance has no inherent link either to the nature of theshelf or to any principle of absolute proximity or adjacency,and was too sparse and inconclusive to merit a conclusion onthat principle alone. Corrective equity has since crystallizedinto a customary norm. The court in a similar vein wrote,“such delimitation must be affected by agreement inaccordance with the equitable principle … by takinginto account all the relevant circumstances...” 118116 Convention on Continental Shelf (1959) 15 UNTS, p. 471, 499 UNTS,p. 311.117 3 ICJ Reports (1969) pp. 47-53.118 Ibid.Considerations of equity form part of the underlyingmoral basis for rules of law. In this sense equity maybe regarded as a material source of law, but not as aformal source, nor in itself constituting a legal rule.Some circumstances relate to the nature of geology,the desirability of maintaining the unity of depositsof natural resources, and proportionality, (which isdefined as the attainment of a reasonable relationshipbetween the extent of a state’s continental shelf andthe length of its coastline). 119 In another case decidedby an arbitration tribunal, the Anglo-FrenchContinental Shelf case, the Tribunal, in seeking tomaintain equity, held the view that in the particularcircumstances, departure from the equidistance rulewas essential in order to ensure equity. It stressedthat the proportionality principle should not govern,but merely correct the delimitation. 120 The Tribunalseemed to adopt a notion of fairness and yet stillcontain it within the guiding rule of equidistance. 121In the Fisheries Jurisdiction Case of 1974, (UK v. Iceland), adispute had arisen on account of Iceland’s unilateralprolongation of her fisheries zone to 50 nautical miles from thebase line. ICJ Reports, (1974) pp. 1-70. 122 The British Governmentsubmitted the case to the ICJ asking the court to adjudge anddeclare such action illegal and safeguard the UK’s rights offishing in that area. Iceland objected to the court's jurisdiction.In its decision, 123 the court declared that the IcelandicRegulation of 1972 constituting a unilateral extension of119 Ibid. pp. 50-52.120 Continental Shelf Case, (Arbitration Tribunal) 54 ILR, (1975) pp. 6-124.121 Supra note 69, pp. 578-580.122 ICJ Reports, (1974) pp. 1-70.123 Ibid.
Equitable Utilisation / 145 146 / International Watercourses Law and Its Application in South AsiaIceland’s exclusive fishing rights to the 50 nautical mile limitwas illegal. The court held that:"the most appropriate method for the solution of thedispute was clearly that of negotiation with a view todelimiting the rights and interests of both parties andregulating equitably such questions as those of catchlimitation,share allocations and related restrictions.The obligation to negotiate followed from the verynature of the respective rights of the parties andcorresponded to the provisions of the UN Charterconcerning the peaceful settlement of disputes. Thecourt could not accept the view that the commonintention of the parties was realised by negotiatingthroughout the whole period covered by the 1973interim agreement. The task before them would be toconduct their negotiations on the basis that such mustbe in good faith by paying due regard to the legalrights of the other and to the facts of the particularsituation and to the interests of other states withestablished fishing rights in the areas." 124This judgement lends credence to the view that cooperation,good faith and good neighbourly relations are the best means toensure maximum benefits from shared resources. The judgmentcorresponds to the obligation of a watercourse state endorsedby Articles 5 and 7 of the UNCIW. 1253.7.3 Broadly Conceived Equity in Continental ShelfApplicationThe states negotiating the third Law of the Sea Conference(LOSC) in 1973 studied the jurisprudence so far developed bythe international courts and tribunals and found that the basictenets of equity had been applied. Taking note of this, the124 Ibid.125 36 ILM (1997), 162, para. 67-71, p. 189.Conference went somewhat further than the ICJ, and developeda formula of equitable principles for the delimitation ofmaritime zones. In so doing, during difficult and protractednegotiations the parties attempted to 126 maintain a balancebetween equity and equidistance. The Informal SingleNegotiation Text (ISNT) of 1975 proposed that:“delimitation of the continental shelf betweenadjacent or opposite States shall be affected byagreement in accordance with the equitableprinciples, employing, where appropriate, themedian or equidistant line, and taking account ofall relevant circumstances." 127The attainment of an agreement on this median line formula byall member states was still a formidable task, because numerousisland nations were sceptical, suspecting that the preference forequity would jeopardise their position in shelf delimitation.According to their view, the median line formula is the bestway to serve their interests. They argued instead for greateremphasis on equidistance, but conceded that the method couldnot be applied in the event of special circumstances. 128 As aresult of more negotiations to arrive at a broader agreement onthe text, several revisions were made to the text toaccommodate and reconcile the interest of those nations.Finally, the Ninth session (1980) produced a balancedformula: 129"the delimitation of the continental shelf between Stateswith opposite or adjacent coasts shall be affected by126 Supra note 69, p. 581.127 127 14 ILM, 682, (1980), 728, Single Negotiating Text; also see B. H.Oxman," The Third United Nations Conference on Law of the Sea: theEight Session” 74 AJIL, (1980) p. 32.128 Ibid. p. 30-32.129 B. H. Oxman, "The Third United Nations Conference on the Law ofthe Sea: The Ninth Session" 1980, 75 AJIL, (1981) pp. 211& 231.
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International WatercoursesLaw and I
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PrefaceIn this book, the author has
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International Treaties and other Do
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Chapter- ThreeEquitable Utilisation
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Introduction / 1 2 / International
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