2. Introduction
3.5 The principle of Equitable Utilization
3.5.3 The role of international courts and arbitrations in promoting the equitable utilization principle
Watercourses Convention.345 In addition to applying IEL principles to both surface and groundwater, the Rules introduced public participation in water management, which was not the focus of previous ILA and IIL work.346
3.5.3 The role of international courts and arbitrations in promoting the equitable
considered in the Meuse River case between the Netherlands and Belgium in front of the PCIJ in 1937. Both countries started to build several canals to benefit from the river for commercial purposes during the nineteenth century. They signed an agreement to withdraw water from the Meuse River in 1863. The countries then attempted to develop the river further and establish new canals. When a dispute was raised, both countries brought their claims to the PCIJ in the 1920s. They accused each other of violating the 1863 treaty. The court did not support either of the parties. Based on the treaty and idea of equity, the court believed that both parties had a right to build canals on the river.350 However, the interesting point of the above case is the importance of equity in international law, and water law in particular. According to the River Meuse judgment, equity is recognized as a principle of international law. This term has been used and accepted in many international tribunals even before the establishment of the PCIJ. As the court states that: 351
What are widely known as principles of equity have long been considered to constitute a part of international law, and as such they have often been applied by international tribunals. Merignhac, Traite theorique et pratique de I'Arbitrage international (1895), p. 295 ; Ralston, Law and Procedure of International Tribunals (new ed., 1926), pp. 53-57 … Some international tribunals are expressly directed by the compromis which control them to apply "law and equity". See the Cayuga Indians Case, Nielsen's Report of the United States– British Claims Arbitration (1926), p. 307.
According to the above judgment, equity is an essential part of international law. The ICJ defines it as a legal concept that “is a direct emanation of the idea of justice. The Court, whose task is by definition to administer justice, is bound to apply it”.352 Additionally, the ICJ has developed the term equity further via the principle of proportionality as an applied function of equity. Here equity, in using transboundary rivers, means that “any uses of an international watercourse would not be permitted where they would result in a grossly disproportionate adverse impact on other social, developmental or environmental values and objectives, irrespective of how beneficial
350 de Chazournes, above n 339.
351 Diversion of Water from Meuse (Neth. v. Belg.), above n 324.
352 Tunisia-Libya Continental Shelf Case. Continental Shelf (Tunisia/Libyan Arab Jamahiriya) [1982] ICJ Reports 18 at para 71.
these are in terms of certain socio-economic or other factors.”353
By emphasizing equity as a principle of international law, the judgment prioritizes social and environmental values and objectives over the economic objectives of utilizing a transboundary river. Here, equity and equitable use of transboundary rivers mean that all riparian states should be concerned with resources' environmental and social needs, rather than solely economic objectives. This understanding of equitable utilization has been confirmed in various cases of ICJ.
The Gabčíkovo–Nagymaros case is one of the obvious applications of equitable utilization and minimizing transboundary river environmental harm. This case was between Hungary and Slovakia. The two states had a treaty between them to develop a dam project on the Danube River in 1977. Hungary postponed the project because of environmental issues in 1989, but Slovakia continued with the project on its side.
However, both parties decided to bring the case to the ICJ for judgment.354
In the 1997 judgment, the court specifically mentioned equitable utilization as an essential principle for international law. The court made Slovakia as a successor for the former Czechoslovakia responsible for taking the unilateral decision and depriving Hungary of the Danube River. In its judgement, the Court stated:355
The Court considers that Czechoslovakia, by unilaterally assuming control of a shared resource, and thereby depriving Hungary of its right to an equitable and reasonable share of the natural resources of the Danube with the continuing effects of the diversion of these waters on the ecology of the riparian area of the Szigetkoz - failed to respect the proportionality which is required by international law.
The main point of this quote is that the court emphasized equitable utilization as the main principle of international law. Even though, there was an agreement between former Czechoslovakia and Hungary for developing this part of the Danube River, the court prioritized environmental concerns rather than economic aspects of the project.
353 Owen McIntyre “Utilization of shared international freshwater resources–the meaning and role of “equity” in international water law” (2013) 38(2) Water international at 126.
354 Erika L Preiss “The international obligation to conduct an environmental impact assessment: The ICJ case concerning the Gabcikovo-Nagymaros project” (1999) 7 NYU Envtl. LJ at 307-311.
355 Gabcikovo-Nagymaros Project (Hungary V Slovakia), above n 31, Para 85.
Therefore, equitable utilization has a broad meaning under customary international law, and it cannot be limited to sharing a certain amount of water. Environmental and social conditions of the transboundary river basin should be considered in applying the principle. Moreover, the equitable use principle and minimization of environmental harm are two main principles of international law that cannot be separated in sharing transboundary river basins. As illustrated by the cases cited above, these principles have a long list of applications in both international and customary international law.