Upreti, Trilochan, International Watercourses Law and Its Application ...

Equitable Utilisation / 149 150 / International Watercourses Law and Its Application in South Asiaconfiguration of the area and other relevantcircumstances, an equitable result". 136The ICJ again adhered to the same concept of equitableallocation as in the case of Libya v. Malta (1985), emphasisingthe need to arrive at an equitable result along withproportionality as one of the governing principles of equity.The court rejected Malta’s claim regarding its lack of energyresources, the needs for fishery resources, and its requirementsas a developing island state. It also rejected Libya’s contentionthat the vastly larger size of its landmass was a factor relevantto the delimitation, and held that equitable utilization was theappropriate rule in the case. 137The word ‘proportionality’ has also become one of thefundamental elements of equity. From its use, the idea ofbroadly conceived equity can be achieved. For example, in anarbitration case1985 the Guinea v. Guinea-Bissau MaritimeDelimitation, the Tribunal held to two equitable considerations.Firstly, to ensure that, as far as possible, each state controls themaritime territories opposite its coasts and their vicinity.Secondly, the Tribunal cited the need to ensure that othermaritime delimitations already made or those still to be made inthe area be given due regard. 138 This decision is capable oftaking into consideration the interests of both states so that theapplication of the principle of broadly conceived equity resultsin significant redistribution of resources.3.7.4 Broadly Conceived Equity in ConventionalArrangementsThe principles used to delimit and allocate the resources of thesea and the UNCIW are similar. Both instruments have taken136 ICJ Reports, (1984) para. 112.137 ICJ Reports, (1985) pp. 13-41.138 Maritime Delimitation, 77 ILR, pp 636-685, (1988) (Ct. of Arb.).the notion of broadly conceived equity a step further than thejurisprudence relating to continental shelf delimitation,explicitly calling on states to take socio-economic needs intoaccount whilst they are allocating such resources. 139 Furtherradical steps are being taken in respect of access to exclusiveeconomic zones and the issues of reasonable and equitableshare for beneficial use of an IWC.The LOSC in its provisions dealing with state access to EEZs,seeks to provide for the distribution of an area surplus resourcesin accordance with equitable principles that take into account,inter alia, economic need. The provisions relate to the rights ofa landlocked state to participate, on an equitable basis, in theexploitation of an appropriate part of the EEZ of coastal statesof the same region or sub-region. 140 States participating inresource utilisation should take into account the followingmatters: 141“1. The need to avoid effects detrimental to fishingcommunities or fishing industries of the coastal state;2. The extent to which the land-locked state is alreadyentitled, through agreement, to exploit the living resourcesof the exclusive economic zone of the coastal state;3. The need to avoid disadvantaging any one coastal state inparticular; and4. The nutritional needs of the populations of the respectivestates.”The Convention also provides preferential rights of access, togeographically disadvantaged states determined by the samecriteria. On the other hand, the UNCIW provides that the rightto use such water is coupled with an obligation to participate inthe “use, development, and protection” of the watercourse in139 36 ILM (1997), pp. 700-720.140 21 ILM- 1982, LOSC, p. 1283.141 Ibid. p. 1284.