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Equitable Utilisation / 151 152 / International Watercourses Law and Its Application in South Asia“an equitable and reasonable manner”, which should take intoconsideration the geographic, hydrographic, hydrological,climatic and other factors of a natural character (as explainedabove in Article 6 of UNCIW). These include the social andeconomical needs of the watercourses states, existing andpotential uses of resources, the effects of the use in onewatercourse system, conservation, protection, development andeconomic use of the water resources and the availability ofalternatives. 1423.7.5 Common Heritage EquityThe common heritage of mankind is related to the rights ofpatrimony, not only to a certain state or group of states but toall nations and peoples. This includes natural and geographicalelements, such as clean environment, water, ocean, airspace,Antarctica, and the Moon, which are required for the existenceand sustenance of human beings and nature, and are to beprotected, preserved and sustained for the present as well asfuture generations. There are conventional arrangements, theLOSC provision relating to the seabed authority and the UNMoon Agreement, 143 explicitly seeking to regulate this field ofinternational law.The LOSC established (Article 156) an International DeepSeabed Authority to manage and distribute equitably thebenefits derived from exploitation of the common heritageelement of marine resources. 144 The Authority is analogous to acorporation, having been established to facilitate exploitation ofan asset (the deep seabed) for the benefit of mankind.Recognising the right of a coastal state in its EEZ, theConvention requires the coastal state to contribute to theAuthority at least a fraction of the benefit derived from mining142 Article 5, 6, 7, 8 & 20-25 of the UNCIW.143 18 ILM (1979), pp. 1434- 1441.144 Supra note 140, p. 1298.in these areas. After five years of production, this amounts to1% of the value of the production escalating by 1% eachsubsequent year until the twelfth year. It stabilises at 7%, theamount being disbursed to the parties to the conventionaccording to 'equitable sharing criteria', taking into account theinterests and needs of developing states, particularly those ofthe least developed and land locked states. 145 This systemsimply seeks to regulate the EEZ and a certain proportion of theaccrued benefits are to be distributed to all nations equitably;particularly to economically weak, developing, and landlockednations. It is a good example of distributive justice in sharingthe benefit from a common heritage.The UN Moon Agreement, which opened for signature in 1979,also includes elements of common heritage equity. 146 Theagreement emphasises the conservation of the Moon, and seeksto facilitate the exploitation and equitable allocation of itsresources. It states:"the moon and its natural resources are the commonheritage of mankind … exploration and use of themoon … shall be carried out for the benefit andinterest of all countries”. 147The agreement calls on states to devise a regime to govern theexploitation of the moon with the purpose of facilitating theorderly development, rational management, and equitablesharing of its resources. States are prohibited from causingpollution or any other acts disturbing the moon's environment,and are obliged to 'pay due regard' to the needs of futuregenerations.145 Article 82, LOSC, Ibid. p. 1286.146 18 ILM (1979) p. 1434, Agreement Governing the Activities of Stateson the Moon and Other Celestial Bodies- hereafter the MoonAgreement.147 Ibid. pp 1435- 1438.
Equitable Utilisation / 153 154 / International Watercourses Law and Its Application in South AsiaThe 1991 Madrid Protocol to the Antarctica Treaty, signed bytwenty-four states, provides that the environmental or scientificinterest in the continent represents a form of common heritageequity, in which conservation is paramount. 148 The pact departsfrom the mercantile model of common heritage equity,assuming the role of a trustee pledged to hold this asset in trustfor the benefit of human kind. This concept is taken from aprotocol to the 1959 Antarctica Treaty that banned nuclear andmilitary activity, suspended competing claims by sevensouthern hemisphere states and established rules for scientificresearch. 149 This Protocol seeks protection of the environmentas a 'fundamental consideration' in planning and conducting allactivities on the continent, and bans all mineral exploitation forat least fifty years, as such activities would severely damage thesanctity of the Antarctic environment. 150The right of the yet to be born is not an idea of recent origin ininternational law. Such feelings have emerged and beendeveloped in the international arena for over a hundred years.The idea was evident in the Bering Sea Fur Arbitration wherethe USA had argued that it was conserving the seals in thecommon interest of mankind. 151 French has argued since thenthat the notion of protecting the environment for present andfuture generations has appeared occasionally in internationalenvironmental law, for example the International Conventionfor the Regulating of Whaling 1946, 152 the 1968 AfricanConvention on the Conservation of Nature and NaturalResources, 153 and the 1972 World Heritage Convention. 154Each instrument stipulates a requirement to protect148 Supra note 69, p. 593.149 Ibid.150 Ibid. Also see 29-30 ILM (1991), pp. 1462-1486.151 Supra note 67, p. 10478.152 161 UNTS, 1946, p. 72.153 1001 UNTS, 1968, p.4.154 11 ILM 1973, p. 1358.environmental resources for present and future generations. 155Since then, the notion has become an almost indispensable partof major environmental instruments. 156 For example, thepreamble of the 1998 Statute of the International CriminalCourt states,“an international criminal court is required for the sakeof present and future generations.” 157The goal of the ICC is to protect present and future generationfrom cruel and inhuman brutality.3.8 Equity: an Integral Aspect of SustainableDevelopmentThe Brundtland Report is commonly viewed as the point atwhich sustainable development became a broad global policyobjective. Equity has been a milestone in the preservation andprotection of the environment by strengthening the idea ofsustainable development. The main achievement of the UnitedNations Conference on Environment and Development(UNCED) was the adoption of the equitable principle at the155 Ibid.156 a. the World Charter for Nature 1982 in its fifth paragraph provides '… man must acquire knowledge … which ensures the preservationof species and eco-systems for the benefit of present and futuregenerations'.b. the Madrid protocol on Antarctica, 1991 provides in the seventhpreambular paragraph: "convinced that the development of acomprehensive regime for the protection of the Antarcticenvironment and dependent and associated systems is in the interestof mankind as a whole …".c. the 1972 Stockholm Declaration in principle 1 states that verynotion.d. whilst in the Rio Declaration in principles 3 provides, "present andfuture generations have both developmental and environmentalneeds; apart from this, every document adopted at Rio, bear thisnotion explicitly . Birnie and Boyle, pp. 11, 16 & 4.157 37 ILM (1998), p. 999.
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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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GlossaryMap of the Ganges BasinThe
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Chapter- ThreeEquitable Utilisation
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Introduction / 1 2 / International
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