international organizations/institutions diplomat contacts - ancient meetings of diplomats - old...

International organizations/institutions

• Diplomat contacts - ancient• Meetings of diplomats - old• Conference of diplomats and

agreement/treaty• Regular international conferences on

same subject = congressesBut ad hoc procedure, followed crises,

depended on state initiatives, unanimous agreement needed

• Non-government associations = private international unions– Eg International Committee of the Red Cross

1863, International Law Association 1873

• Public international unions of gov depts– eg Universal Postal Union 1874 : permanent

bureau, periodic meetings, decisions by majority


• Institutions of global character – League of nations 1919-1945– UN

• Regional insitutions– NATO– EU– OAS– Arab league– ASEAN

3 different types of IOs under IL:

• International public organizations: only states can be members eg WTO.

• Non-governmental organizations: have individual members or contingents from different countries around the world. They are not international actors, per se, but may have influence over the process of creating new rules or norms of international behavior. A handful, however, do have international legal status by virtue of being written into IL. E.g. the IRC (International Red Cross is privileged under the laws of war).

• Multinational public enterprises: run by consortia of governments. For example, a commodity producing cartel such as OPEC, regional airlines, or satellite communications operators.

International organizations/institutions• Legal characteristics

– Created by treaty, agreement– Consist of organs which can act independently of

states– Possess some international legal personality

• May be stated in founding treaty– Eg Treaty est EU Constitution 2003 Title I

Art 6: The Union shall have legal personality

• Or inferred from purposes, powers, subsequent practice eg UN

– ICJ Reparation for injuries suffered in the Service of the United Nations case 1949:

….its UN members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged.

…..states had the power in conformity with international law, to bring into being an entity possessing objective international personality and not merely personality recognized by them alone.

– Then, subjects of international lawrights and duties, powers of decision,

enforcement powers, may sign treaties/agreements

– But limited personality, not like states


• IAEA

ARTICLE XV: Privileges and immunitiesA. The Agency shall enjoy in the territory of each member

such legal capacity and such privileges and immunities as are necessary for the exercise of its functions.

B. Delegates of members together with their alternates and advisers, Governors appointed to the Board together with their alternates and advisers, and the Director General and the staff of the Agency, shall enjoy such privileges and immunities as are necessary in the independent exercise of their functions in connection with the Agency.

C. The legal capacity, privileges, and immunities referred to in this article shall be defined in a separate agreement or agreements between the Agency, represented for this purpose by the Director General acting under instructions of the Board of Governors. and the members.

ARTICLE XVI: Relationship with other organizationsA. The Board of Governors, with the approval of the

General Conference, is authorized to enter into an agreement or agreements establishing an appropriate relationship between the Agency and the United Nations and any other organizations the work of which is related to that of the Agency.

• UNEP – created by GA Resolution 2997

– Subsidiary body of GA– Very limited personality by practice

• Some domestic – headquarters agreement

• Memo’s of understanding with int orgs.

• Mekong River Commission est by treaty 1995– Art 11: …shall, for the purposes of the

exercise of its functions, enjoy the status of an international body, including entering agreements and obligations with the donor or international community

But COPs, EBs, MOPs not considered IOs

5b. Protection and preservation of waters

• 97% salty• 3% fresh• 0.3% of 3% available• Population grows, freshwater stays

constant• Amount available decreases• Quality decrease• But enough supply, distribution

problem• Projects for water export water

– Turkey/Middle East– Br Col – CA [Free Trade in Water? Canada

says No and halts Exports, NY Times Mar 8 1999 A1]

– Antarctica –Persian Gulf


Hydrographic info:

Groundwater 4

Lake/river

State A

State B, C, D….

Groundwater 3

Groundwater 2

Groundwater 1


High stress: > 40% available is withdrawn

moderate stress: 10-20% available is withdrawn

Low stress: < 10% available is withdrawn

5b. Protection and preservation of international waters

Concept of “international” – border more than one state/pass through more than one state

• Based on navigability and navigation rights– River Oder case

• Now multiple uses– Energy– Industrial– Agriculture– Drinking– Recreation– -----needs broader approach for legal

allocation of rights and duties


States bordering rivers = riparian states


Rhine river basin (source:

UNESCO)

upper

riparians

lower

riparians


Sewage, agricultural wastes (pesticides, fertilizers), industrial wastes (chlorinated compounds, metals), acidification

Surface water

groundwaterOver extraction (salt water intrusion, sinking, increased costs of deeper extraction)

Drinking, agriculture, navigation, recreation

5b. Protection of waters

What is the legal basis for allocation of water?

a) Territorial sovereignty

(Harmon doctrine)

b) Territorial integrity

(no interference by upstream state)

5. Protection and preservation of waters Legal basis

What does this mean?

Upper riparian

Lower riparian

5b.Protection and preservation of waters

• Harmon doctrine and consequences

– Absolute sovereignty– No responsibility for consequences

outside– No legal recourse by affected parties– Only by negotiating a treaty – difficult– Princ 21: sovereign right to exploit own

resources

BUT

Princ 21: responsibility to not cause damage

• Harmon doctrine rejected - 1906 Treaty on equitable distribution of Rio Grande Waters for irrigation:– Half the flow to each country

5b. Protection and preservation of waters Legal basis

c)Equitable utilization

Equitable

= ‘dealing fairly and equally with all concerned‘

=‘existing or valid in equity as distinct from law‘

= compromise

5b. Protection and preservation of waters Legal basis

d) Common management

• Adopted by international legislation

1992 UNECE Transboundary Watercourses Convention (common management of tb watercourse as defined)

1997 UN International Watercourses Convention (common management of int watercourse, more basin)


On what hydrographic basis have international waters been allocated underIL?

• Basin approach: - UN Convention on the Law of

International Watercourses 1997- bilateral and regional treaties

(Amazon, - Mekong, Plate, Rhine, Danube,

Great Lakes)- Stockholm/Rio Conferences

• Own share/sovereignty approach with no harm rule:

- ILA Helsinki Rules 1966- UNECE Watercourses

Convention 1992


World’s river basins


Development of treaty law• 1966 Helsinki Rules (ILA)

• UN, UNEP, OECD, UNECE soft law

• UNECE Convention on the protection and use of transboundary watercourses 1992

• UN Convention on the non-navigational uses of international watercourses 1997

1997 UN Convention on the Non-navigational Uses of International

Watercourses

– Non-navigation

– Framework convention

– 37 articles in 7 parts and annex

1997 UN International Watercourses Convention

• WATERCOURSE– A system of surface waters and

groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus.

– Some groundwater is included• INTERNATIONAL

WATERCOURSE– A watercourse parts of which are

situated in different states


Hydrographic info:

Groundwater 4

Lake/river

State A

State B, C, D….

Groundwater 3

Groundwater 2

Groundwater 1

1997 UN International Watercourses Convention (12

ratifications, needs 35 to come into force)

• Aim: – Prevent harm to the water of a

watercourse even due to activities taking place outside the actual watercourse if a linkage of interdependence can be established

– Harm caused by uses of the watercourse to elements of the environment different from the water of the watercourse.

• Core articlesart 5 equitable and reasonable utilization

5. Protection and preservation of waters

1997 UN Watercourses Convention

Factors for equitable and reasonable utilization (art 6):

(a) Geographic, hydrographic, hydrological, climatic, ecological factors;

(b) The social and economic needs of the watercourse states concerned;

(c) The population dependent on the watercourse in each watercourse State;



Factors for equitable and reasonable utilization:

(art 6)(d) The effects of the use in one

watercourse State on other watercourse States;

(e) Existing and potential uses of the watercourse;(f) Conservation, protection,

development and economy of use of water;

(g) The availability of alternatives to a particular planned or existing use.



art 7

Obligation to not cause significant harm

(sic utere = not to cause harm)• Take appropriate measures not

cause significant harm• Not prohibited• When it is caused, take appropriate

measures to eliminate or mitigate harm, discuss compensation based on equitable apportionement of benefits

UN Watercourses Convention

• Relationship between art 5 –equitable use- and art 7 – no sig harm rule

– No precedence– Upper riparians gen want equit

use– Lower riparians gen want no sig

harm– Situation: sig harm to all +

equitable use of waters = breach of obligations??

– ILC interpretation: procedural equitable use balancing not to include no sig harm rule

5. Protection and preservation of waters 1997 UN Watercourses Convention

art 8 Obligation to cooperate

art 12, 28 Notification measures

exchange of data and information, notification, communication, consultations and negotiations


Other obligations

– Protect, preserve ecosystem (art 20)

• what about equitable use/sustainable development?

• whose ecosystem?

– Prevent, reduce, control pollution

• by joint water quality standards, lists of restricted substances, art 21


– No introduction of new or alien species (art 22)

– Protect marine environment (art 23)


• future watercourse agreements may apply and adjust the basic principles of UN Convention (art 3)– May be happening in

India/Nepal/Bangladesh– What of existing treaties and equit

use?

• At the request of any watercourse state…consider creation of joint management (art 24)– Note joint management does not

mean protection/preservation unless no sig harm rule invoked

• Aral Sea example


General problems• planning state decides whether and

extent of significant harm• Balance no harm v equit use• No duty to generate data• No direct legal consequences of

non-notification, only state responsibility

• No int water quality standards, so emission standards in some areas must be judged against no sig harm rule

1997 UN Watercourses convention

BUT• clarifies basic standards governing

the non-navigational uses of internationally shared fresh water resources

• reflects general consensus, not progressive development of principles applicable

• starting point for the negotiation of new agreements

• Even where there is an applicable agreement, the Convention may play an important role in the interpretation of that agreement, eg in Gabcikovo-Nagymaros case.

• success of the Convention does not depend on whether it enters into force.

• influence derives from codification of general principles and rules governing the non-navigational uses of international watercourses.

1992 UNECE Transboundary Watercourses Convention

• Based on Helsinki Rules 1966• In force 1996, 35 parties (out of 55

UNECE parties)• 28 articles in 3 parts• 4 annexes• 2 protocols

-Protocol on Water and Health (17 June 1999, London)

-Protocol on Civil Liability and Compensation for Damage (21 May 2003, Kiev)


Narrower definition of transboundary

waters (not basin approach): “surface or groundwaters which mark,

cross or are located on boundaries between two or more states”

ButGreater obligations for parties


General obligations

• Prevent, control, reduce any transboundary impact (main obligation -art 2)

• Prevent, control, reduce pollution at source (by low/non-waste technology; limits/permits for waste-water discharge; waste water treatment….)


• Conserve water resources• Use in a reasonable and equitable

way (not explained)• Restoration of ecosytems• Common management on basis

of equality and reciprocity (art 9)• Provisions applying to all parties +

to parties sharing tb waters• Incorporate precautionary principle,

polluter pays, sustainable development


World’s river basins

• Mekong River Agreement 1995

• Zambezi River 1987

• Amazonas

• Not yet: Euphrates/Tigris Rivers

Apply 1997 UN Watercourses Convention principles to this?

• Current issue:Turkey-Syria-Iraq:Euphrates and Tigris

• Up to 1974, 90% flow of Euphrates into Iraq, 7% to Syria, rest used by Turkey

• Southern Anatolia Development Project (GAP) for hydroelectric power/irrigation/development of southern Anatolia (Kurdish area) mainly in 1980s

• Natural yield 32000 mcm:- Turkey withdraws 14000 mcm- Syria needs 13000 mcm, also

plans dams- Iraq needs 26000 mcm- Jordan is provided by Iraq

??????

- Historical and acquired rights claims by Syria + Iraq

- Euphrates/Tigris considered two international rivers by Iraq; Euphrates/Tigris considered one basin by Syria, Turkey

- Iraq/Syria objections to dams – Turkey claimed sovereignty over water – Syria supported Kurdish instablity in Turkey – Turkey agreed to provide water in exchange for end of Kurd support

- Turkey-Israel potential water pipeline project/ military alliance

- Turkey/Iraq cooperation 1946, 1980, 1982 with Syria. Technical committee dismissed after 1990 Ataturk Dam built

- Syria wants UN presence, ILC studies and regulations

- Iraq and Syria want mathematical formula for equitable and reasonable use calculation

International Decisions

• River Oder case 1929 PCIJ

Extent of jurisdiction of river commission?

• All riparian states are equal• Community of interest• All parts of river are international


• Lac Lanoux Arbitration 1957 (Fr v Sp)

Must Fr obtain consent of Spain for public use of inland waters which feed Spanish river?

• Fr can use waters• Sp’s rights must be respected• inform/cooperate to do this• no rule that consent is required


• Gabcikovo-Nagymaros case (Hungary/Slovakia, 1997, ICJ)

international organizations/institutions diplomat contacts - ancient meetings of diplomats - old...

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