Equity And Its Element Of Proportionality:Exploring Their Roles In The Law Of International Watercourses

In the realm of the law of international watercourses,one of the most crucial questions surrounds the issue as to how the states sharing an international watercourse should agree or disagree to allocate this precious yet scarce natural resource.International law on the subject has been guided by the notions of state sovereignty and sovereign equality.Being based on these notions,the theory of limited territorial sovereignty has become the most commonly advanced and prevalent theory regarding the use and allocation of waters of international watercourses.This theory forms the basis of the rule of equitable and reasonable utilization which is the cardinal and dominant rule in the law relating to international watercourses.The contours of this rule are defined by the considerations of equity which is a frequently applied notion in international watercourse agreements.The objective of equitable and reasonable utilization is to determine how the share of the sovereign states in their shared watercourses may be allocated equitably by taking into account the relevant circumstances and factors.Therefore,an understanding of the role of equity in the law of international watercourses is crucial for achieving fair and equitable allocation and utilization of international watercourses.There is a substantial amount of literature exploring the general role of equity in international law including its particular role in the apportionment of shared natural resources.Since the rule of equitable and reasonable utilization seeks to allocate the rights of the states on the basis of a vague and flexible concept of equity,it is imperative to explore the specific role of equity in the law of international watercourses which still lacks elaboration on the subject.The objective of this dissertation is to explore the specific roles played by equity in the allocation and utilization of waters of international watercourses.To achieve this end,the dissertation first examines the general role of equity in international law and then proceeds on the exploration of equity's specific role in the law of international watercourses.Despite being the cardinal rule on the subject,equitable and reasonable utilization has been subjected to some criticisms.The language and formulation of the rule as reflected in the leading international legal instruments on the issue has been criticised for being ambiguous and for providing limited guidance towards the achievement of the purpose for which it was formulated.The well-recognized formulation of equitable and reasonable utilization involves an assessment and consideration of a number of geographic,social,economic,environmental and other factors and the role of equity in this regard lies in the process of equitable balancing between the various factors and circumstances.It has been contended that the existing formulation of equitable and reasonable utilization helps little in suggesting how such balancing will take place in the face of rising conflicts of uses regarding global freshwater resources.Taking cognizance of this limitation of the rule,this dissertation explores the role of equitable notion of proportionality in achieving the balance among the aforesaid factors and in ensuring that there remains a relationship of scale between the allocation of the water and the needs,interests and circumstances of the watercourse states.Proportionality has been used in the various areas of international law to weigh and balance competing interests or factors.The use of proportionality in the context of resource allocation has been most prominent in the area of maritime delimitation.Proportionality was used as an element of equity by the International Court of Justice in the North Sea Continental Shelf cases and thereafter such course was followed in other maritime delimitation disputes.However,the use of proportionality in maritime delimitation appears to be restrictive and narrow since its application has been confined only within the geographical realities of the disputing states.Proportionality can play a more extensive and far-reaching role in the law of international watercourses since various factors and considerations has been attached with the rule of equitable and reasonable utilization based on which proportionality can be assessed and measured.This dissertation aims to contribute to the existing knowledge regarding the law of international watercourses through the exploration of the role of proportionality in weighing and balancing the factors and considerations attached with the rule of equitable and reasonable utilization.Two important corollaries of the rule of equitable and reasonable utilization are 'equitable benefit sharing' and 'equitable participation' as embodied in Article 5 of the 1997 UN Convention on the Law of Non-Navigational Uses of International Watercourses(the 1997 UNWC),the global convention on the subject.This dissertation makes an important contribution in the law of international watercourses by exploring the role of proportionality,as an element of equity,in the context of 'equitable utilization','equitable benefit sharing' and 'equitable participation' in international watercourses.