ПРАВИЧНОСТ И КОРИШЋЕЊЕ ЗАЈЕДНИЧКИХ ВОДНИХ ДОБАРА
EQUITY AND THE USE OF SHARED WATER RESOURCES

Summary/Abstract: In this article, the author analyses the contents of the notion of equity in international law on shared water resources. It is stated that the content of equity in international law is not fully ascertained. However, for the purpose of distribution and using water resources, the only possible equity is the one that acts as a mitigation of a hard legal rule in its application, for the correction of absurd results, and as the fill-in of legal lacunae or the concretization of widely formulated legal principles. The principle of equitable and reasonable utilization is the basic positive legal rule in this field of international law and it is imbued with this conception of equity. It concurrently serves as a widely formulated legal principle and as an adjusting factor of the application of technical rules on the water resources distribution. However, this formulation of equitable and reasonable utilization is of little help when it comes to contested legal interpretations, competitive interests that preceded the agreement or conflict of technical rule. The author analyses the practice of the International Court of Justice in the delimitation of continental shelves to find a concept of proportionality as a key element of the effect of equity on equitable delimitations. Proportionality is adequate for application in the field of shared water resources use since this field is plagued with similar problems. The application of proportionality emphasizes water needs of riparian states as a key factor in the search for equitable solution, and second to it, on the physical and geographical traits of a watercourse. Furthermore, proportionality aids the harmonious relationship between the principle of equitable and reasonable utilization and the obligations not to cause substantial harm and to protect the environment of international watercourse.

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