International organizations/institutions Diplomat contacts - ancient Meetings of diplomats - old

1. International organizations/institutions • Diplomat contacts - ancient • Meetings of diplomats - old • Conference of diplomats and agreement/treaty • Regular international conferences on same subject = congresses But 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

2. International organizations/institutions • Institutions of global character • League of nations 1919-1945 • UN • Regional insitutions • NATO • EU • OAS • Arab league • ASEAN

3. 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.

4. 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 law rights and duties, powers of decision, enforcement powers, may sign treaties/agreements • But limited personality, not like states

5. International organizations/institutions • IAEA ARTICLE XV: Privileges and immunities A. 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 organizations A. 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.

6. 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

7. 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

8. 5b. Protection and preservation of waters Hydrographic info: State B, C, D…. State A Groundwater 1 Lake/river Groundwater 2 Groundwater 3 Groundwater 4

9. 5b. Protection and preservation of waters High stress: > 40% available is withdrawn moderate stress: 10-20% available is withdrawn Low stress: < 10% available is withdrawn

10. 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

11. 5b. Protection and preservation of waters States bordering rivers = riparian states

12. 5b. Protection and preservation of waters Rhine river basin (source: UNESCO) upper riparians lower riparians

13. 5b. Protection and preservation of waters Sewage, agricultural wastes (pesticides, fertilizers), industrial wastes (chlorinated compounds, metals), acidification Drinking, agriculture, navigation, recreation Surface water groundwater Over extraction (salt water intrusion, sinking, increased costs of deeper extraction)

14. 5b. Protection of waters What is the legal basis for allocation of water? • Territorial sovereignty (Harmon doctrine) b)Territorial integrity (no interference by upstream state)

15. 5. Protection and preservation of waters Legal basis What does this mean? Upper riparian Lower riparian

16. 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

17. 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

18. 5b. Protection and preservation of waters Legal basis • 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)

19. 5b. Protection and preservation of waters On what hydrographic basis have international waters been allocated under IL? • 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

20. 5b. Protection and preservation of waters World’s river basins

21. 5b. Protection and preservation of waters 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

22. 1997 UN Convention on the Non-navigational Uses of International Watercourses • Non-navigation • Framework convention • 37 articles in 7 parts and annex

23. 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

24. 5b. Protection and preservation of waters Hydrographic info: State B, C, D…. State A Groundwater 1 Lake/river Groundwater 2 Groundwater 3 Groundwater 4

25. 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 articles art 5 equitable and reasonable utilization

26. 5. Protection and preservation of waters1997 UN Watercourses Convention Factors for equitable and reasonable utilization (art 6): • Geographic, hydrographic, hydrological, climatic, ecological factors; • The social and economic needs of the watercourse states concerned; (c) The population dependent on the watercourse in each watercourse State;

27. 5. Protection and preservation of waters1997 UN Watercourses Convention 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.

28. 5. Protection and preservation of waters1997 UN Watercourses Convention 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

29. 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

30. 5. Protection and preservation of waters1997 UN Watercourses Convention art 8 Obligation to cooperate art 12, 28 Notification measures exchange of data and information, notification, communication, consultations and negotiations

31. 5. Protection and preservation of waters1997 UN Watercourses Convention 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

32. 5. Protection and preservation of waters1997 UN Watercourses Convention • No introduction of new or alien species (art 22) • Protect marine environment (art 23)

33. 5. Protection and preservation of waters1997 UN Watercourses Convention • 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 watercoursestate…consider creation of joint management (art 24) • Note joint management does not mean protection/preservation unless no sig harm rule invoked • Aral Sea example

34. 5. Protection and preservation of waters1997 UN Watercourses Convention 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

35. 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.

36. 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)

37. 1992 UNECE Transboundary Watercourses Convention Narrower definition of transboundary waters (not basin approach): “surface or groundwaters which mark, cross or are located on boundaries between two or more states” But Greater obligations for parties

38. 1992 UNECE Transboundary Watercourses Convention 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….)

39. 1992 UNECE Transboundary Watercourses Convention • 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

40. 5. Protection and preservation of waters World’s river basins

41. Mekong River Agreement 1995 • Zambezi River 1987 • Amazonas • Not yet: Euphrates/Tigris Rivers

42. Apply 1997 UN Watercourses Convention principles to this? • Current issue:Turkey-Syria-Iraq: Euphrates and Tigris

44. 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

45. ?????? • 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

46. 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

47. International Decisions • 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

48. International Decisions • Gabcikovo-Nagymaros case (Hungary/Slovakia, 1997, ICJ)