The draft articles on the law of international watercourses adopted by the International Law Commission: an overview and some remarks on selected issues

In 1994, after more than twenty years of work, the International Law Commission of the United Nations adopted a set of thirty-three draft articles on the Law of the Non-Navigational Uses of International Watercourses. In the same year, the draft articles were submitted to the General Assembly with a view to the adoption of an international convention. The present paper analyzes and comments upon some of the major issues dealt with in the draft articles, devoting special attention to the substantive legal principles governing the utilization of international rivers and the protection of related ecosystems. Various questions still remain open for consideration by the Working Group convened by the General Assembly in 1996–1997 for the elaboration of a definitive convention. In spite of this, the draft articles adopted by the International Law Commission stand as an important achievement in the effort at codification of the law of international water resources. The present article was written within the framework of the research project "Technical aspects of the international law of the sea" which is being carried out at the Faculty of Law, University of Milan, Italy.     

The completion of the preparatory work for the UN Convention on the Law of International Watercourses

This article deals with the debate of the UN General Assembly on the establishment of a framework convention on the Law of the Non-Navigational Uses of International Watercourses. The debate took place in two sessions, held in October 1996 and March/April 1997, with the final voting and adoption of the Convention on 21 May 1997.
The present article concentrates on the second part of the negotiations and the finalization of the text. Salient aspects are analyzed, such as the normative function of the Convention, the two important principles of "equitable utilization" and the "no-harm rule", as well as peaceful settlement of disputes. The preparatory work concerning these provisions is examined, and some general consideration is given to the results achieved.
The present article is a sequel to the account by the same author, published in NRF 21:2, which deals with the first part of the debate and outlines the main legal and political issues at stake. The original text of the ILC articles is also included in the Special Issue on Transboundary Waters.
Although the author was a member of the Italian Delegation to the Working Group, the opinions expressed in the present article are his own and do not necessarily reflect the views of the Italian Government. The author apologizes for any inaccuracies in the presentation of the views of other delegations in this article.     

Economic Impact of Sea-bed Mineral Resources Development in Light of the Convention on the Law of the Sea

In 1983, the Preparatory Commission for the International Sea-Bed Authority and the International Tribunal for the Law of the Sea appointed its officers, decided upon its structure and adopted a programme of work. In July of the previous year, the US Government announced that it would not sign the Convention on the Law of the Sea and thus would not participate in the deliberations of the Preparatory Commission. As part of the Texts adopted, Resolution II establishes a scheme for the Protection of Pioneer investment pending the entry into force of the Convention. This scheme is predicated on the philosphy embodied in the Convention in respect of the establishment of a resource policy for the development of sea-bed mineral resources and takes into account its basic component, the limitation of production. This article investigates the impact of future sea-bed mineral development on the affected economies of developing land-based producer states. It also reviews the mechanisms to be utilized to mitigate against possible adverse impacts and attempts to assess the extent to which these resources may be exploited in the medium term.     

What is Fair and Equitable Benefit-sharing?

“Fair and equitable benefit-sharing” is one of the objectives of the UN Convention on Biological Diversity and the FAO International Treaty on Plant Genetic Resources for Food and Agriculture. In essence, benefit-sharing holds that countries, farmers, and indigenous communities that grant access to their plant genetic resources and/or traditional knowledge should share in the benefits that users derive from these resources. But what exactly is understood by “fair” and “equitable” in this context? Neither term is defined in the international treaties. A complicating factor, furthermore, is that different motivations and perspectives exist with respect to the notion of benefit-sharing itself. This paper looks at six different approaches to benefit-sharing that can be extracted from the current debates on “Access and Benefit-Sharing.” These approaches form the basis of a philosophical reflection in which the different connotations of “fair and equitable” are considered, by analyzing the main principles of justice involved. Finally, the various principles are brought together in order to draw some conclusions as to how a fair and equitable benefit-sharing mechanism might best be realized. This results in several recommendations for policymakers.     

Marine mineral resources: Effect of the low of the sea convention

The degree of security of investment afforded by the applicable legal regime is one of the most important factors affecting minerals projects. This article outlines the deep-sea mining regime contained in the recently adopted Law of the Sea Convention. A history of subsea mining, including petroleum mining, is presented and the events leading to adoption of the Convention are described. Those parts of the Convention relating to deep-sea mining are analysed, and the International Sea-Bed Authority is examined. It is concluded that deep-sea mining on a commercial scale is unlikely before the end of the decade.     

Education on environmental law

Summary The current views on whether environmental law is a subject of study at the Universities is discussed in this paper. The author traces the development of environmental law, and maintains that legal science is one, and that it has been grounded into branches for teaching and research purposes. A case for the teaching of environmental law at the universities is made. A teaching programme is suggested which brings out the relationships of environmental law with ecology, social science, economics, management science, technology and other branches of legal science.Born in Argentina, with a Doctor of Law from the University of Buenos Aires. Has held professorships in Water and Mining Laws, Agrarian and Mining Law, Natural Resources Law, in several universities in Argentina. He was a visiting professor in the period 1967–71, at Delft Technological Institute, The Netherlands.From 1969–70, he was Secretary of State for Water Resources of Argentina, and in 1970, Vice-Chairman of the UN Committee on Natural Resources. Consultant on Environmental Law for FAO in 1970. He is at present (1980–82) President of the International Water Resources Association.He has been a member of the IUCN Commission on Environmental Policy, Law and Administration since 1978, is President of the Inter American Commission on Environmental Law and Administration, and Regional Governor (Latin America) of the International Council on Environmental Law.In 1978 he was awarded the Elizabeth Haub Prix on Environmental law.He is author of several books and papers on environmental, natural resources and water laws. These include Code on Natural Resources (Province of Corrientes Argentina, 1980) and co-author of Code on the Renewable Natural Resources and Environmental Protection, Colombia, 1974.     

Rethinking the management of transboundary freshwater resources: a critical examination of modern international law and practice

Available freshwater stocks are being depleted and impaired on a widespread basis, with acute shortages an increasingly frequent condition in arid climates. In transboundary basins, water scarcity and pollution compound interstate tension and contribute to human suffering and ecological damage. This article provides theoretical perspectives on shared freshwater disputes and on the evolution of the international law of shared water resources. It argues that the UN Convention on the Non-Navigational Uses of International Watercourses (ratified by some countries, but not yet in force) is inadequate as a framework convention in terms of providing general obligations on the future parties or an institutional framework for future action. The paper suggests that three critical concepts be considered in future management of shared water resources: (1) the unitary character of watersheds (where the absence of extra-basin diversions allows); (2) joint or "communitarian" watershed management; and (3) the relevance of international trade to alleviating regional food stress, resulting from local water scarcity. Finally, it proposes the establishment of an international advisory body on shared water disputes, modelled after the Intergovernmental Panel on Climate Change (IPCC), whose role is codified in the Kyoto Protocol to the United Nations Framework Convention on Climate Change.     

Joint institutional arrangements for addressing transboundary water resources issues—lessons for the GEF

The lofty goals of the 1992 Earth Summit regarding sustainable development will not be achieved without major improvements in the management of transboundary water resources. This paper describes the serious nature of water-related conflicts and environmental damage associated with degradation of marine ecosystems, coastal zones, and shared surface/groundwater systems. Traditional approaches such as international conventions, watercourse agreements with basin organizations, and arbitration have generally fallen short of their objectives. This article suggests that a middle ground centered on multicountry institutional arrangements for joint fact finding, evaluation, and problem resolution may be a more productive approach over the short term to achieve sustainable development. The experience of the International Joint Commission (Canada and U.S.) is described as a way of providing a neutral ground for building trust among nations, for 'leveling the playing field' among small and large countries, and for providing mechanisms for countries to work jointly toward sustainable development of their shared resources without relinquishing their sovereignty. The Global Environment Facility (GEF) is playing a catalytic role in assisting countries to address transboundary water resources issues. The paper describes GEF's Operational Strategy and discusses the implications of joint institutional arrangements for the international waters focal area. Given that the environmental security of many nations rests on improved transboundary cooperation, the GEF provides a pragmatic opportunity for countries to cooperatively address these pressing problems.     

Education at the Commission on Sustainable Development: the perception of the international community

This paper explores the role of education as it might assist in achieving a sustainable world. It examines the perceptions of the international community present at the seventh session of the Commission on Sustainable Development (CSD). A survey was conducted of 146 delegates and UN staff over the two weeks of the Commission's session in April 1999. The survey identified the primary importance placed on education as a cross-cutting theme of sustainability and the need for efforts to be co-ordinated to achieve education for sustainable development at all levels. To make further progress for implementing Agenda 21, the task management by UNESCO must improve through instigation of a supportive reporting system at the CSD. The education community must receive appropriate support and funding to make effective progress at local and national levels to implement the work programme for education, public awareness and training.     

《大气污染防治法(修订草案)》第四十五条正当性审视

第十二届全国人大常委会第十二次会议初次审议了国务院提请审议的《大气污染防治法(修订草案)》,修订草案第四十五条拟授权省、自治区和直辖市人民政府可以采取机动车限行措施,其正当性引起社会的激烈讨论。机动车限行涉及公民所有权的限制,授权的合法性与正当性应受到公法上法律保留原则和比例原则的审查。草案第四十五条未区分高排放与低排放机动车、常态限制与临时限制,模糊地授权地方立法,不符合法律创设的目的性及必要性要求,第四十五条必须进一步明确授权范围。     

The composition and environmental hazard of copper slags in the context of the Basel Convention

A recent comprehensive review of the characteristics and utilization of copper slags encourages (properly) several applications for this important pyrometallurgical byproduct. However, the review does not include possible environmental effects from these slags. The United Nations Basel Convention on the Transboundary Movement of Hazardous Wastes and Their Disposal characterizes copper compounds that exhibit specified hazard characteristics as hazardous wastes. In 1996, the Convention considered further characterization of these and other compounds and substances. The final characterization of copper slags is as non-hazardous, i.e., exempt from control. This decision was based in part (if not largely) on the data that are presented here. Literature reports were used to accumulate data describing the chemical composition and acid leaching of commercial copper slags from three countries. From these data, average values of chemical composition and their statistical confidence limits (95%) were calculated. The variability of the chemical analyses of three commercial slags produced over 19 or 20 months were statistically analyzed and shown to be small. The concentrations of toxic heavy metals in the slags are low and the frequency distributions of the values are narrow. Most of the data are normally distributed, validating the use of the statistics used and permitting predictions of likely values. The amounts of heavy metals extracted by an aggressive standard acid leach procedure are low and well below the United States. regulatory levels derived from drinking water standards. The results for total composition and leaching illustrate why the U.S. Environmental Protection Agency made a regulatory determination that such slags are not hazardous wastes. Later, in 1996, the Basel Convention Technical Working Group concurred and the Parties to the Convention adopted their recommendation.     

Reducing conflict over the Danube waters: equitable utilization and sustainable development

This paper develops the idea that the principle of equitable utilization must be applied in concert with sustainable water use not only in the resolution of specific disputes but in the cooperative management of water resources in general. It illustrates this point with two different cases involving the use of the Danube River. The first is the conflict over the Gabcikovo Nagymaros Dam, which now rests before the International Court of Justice. The author argues that a narrow legal ruling that fails to take into account broader issues of equitable utilization as they relate to sustainable development will not satisfactorily address the long-term questions at stake between the parties. The second involves the situation in the Danube Delta where the potential for conflict exists, but may be minimized through the convention and institutional framework developed to address the environmental degradation and pollution of the Danube River basin, which is based in part on the principle of equitable utilization and the goal of achieving more sustainable water use. The paper provides a brief overview of the geographical features of the Danube River and international water law. It then explores the principle of equitable utilization and sustainable water use in light of the two cases and discusses the implications for the resolution and management of conflicts involving internationally shared water courses.     

Deep-Sea Mining: The Consequences of Failure to Agree at UNCLOS III

In July 1982 the US Government announced that it would not sign the new Convention on the Law of the Sea adopted at the eleventh session of the Third United Nations Conference on the Law of the Sea in April 1982. This article investigates the possible consequences of the failure to achieve a consensus between the Group of 77 and the western industrialised States on a regime to govern the deep-sea mining of manganese nodules. After considering the range of possible outcomes, the author identifies the benefits and costs involved in operating under the two alternative regimes, that provided by the new Convention and related Conference resolutions and the alternative Reciprocating States Regime based on unilateral legislation co-ordinated by a Mini-Treaty. En juillet 1982, le gouvernement des Etats-Unis a annoncé qu'il ne signerait pas la nouvelle Convention sur le droit de la mer qui a été adoptée à la llème session de la troisième Conférence des Nations Unies sur le droit de la mer en avril 1982. Cet article étudie les conséquences possibles de l'absence d'un consensus entre le Groupe des 77 et les nations industrielles occidentales sur un régime devant gouverner l'exploitation des nodules de manganèse que l'on trouve sur les fonds marins profonds. Après avoir consideéré tout un éventail de résultantes éventuelles, l'auteur dresse un état des avantages et désavantages que présentent les deux régimes possibles, c'est-à-dire le régime prévu par la nouvelle Convention et les résolutions concomitantes adoptées par la Conférence et le régime de réciprocité entre états basé sur une législation unilatérale et sanctionné par un mini-traité. En julio de 1982 el gobierno de los Estados Unidos anunció que no firmaría la nueva Convención sobre el Derecho del Maradoptada en la undécima sesión de la Tercera Conferencia de las Naciones Unidas sobre el Derecho del Mar en abril de 1982. Este artículo investiga las posibles consecuencias de la falta de consenso entre el Grupo de los 77 y los estados industriales occidentales sobre el régimen que gobierna la extracción de nódulos de manganeso en mares profundos. Después de considerar el posible rango de consecuencias el autor evalúa los costos y beneficios resultantes de operar bajo dos regímenes alternativos, aquel definido por la nueva convención y las resoluciones relacionadas y el Régimen de Reciprocidad entre Estados basado en legislación unilateral coordinados por el Mini-Tratado.     

The International Law Commission and Legal Principles Related to the Non-navigational Uses of the Waters of International Rivers

There are serious problems related to the use and conservation of international rivers. Riparian nations tend to use their waters and to transfer negative impacts, such as pollution, to other countries. This paper examines the work of the International Law Commission as it seeks to elaborate a framework convention for the use and conservation of shared watercourses. Although this task is still in progress, basic substantive principles such as 'equitable apportionment' and 'prohibition against appreciable harm' seem to be widely agreed upon. The immediate need is the development of and the agreement on, procedural systems for conflict resolution.     

Climate negotiations at a crucial stage: the Hague meeting of contracting Parties in November 2000 and its follow-up

The author discusses the central issues of the UN Framework Convention on Climate Change and the Kyoto Protocol in the general context of the Rio process. The nexus of issues under negotiation in relation to climate change are viewed in the context of multilateral diplomacy for sustainable development. The article outlines the background to the important Sixth Conference of the Parties, held in the Hague in November 2000, and highlights the relationship between the main actors in the negotiations. Finally, the main results of the Hague negotiations are presented, followed by comments on follow-up procedures and perspectives.     

Exploitation of the Mineral Resources of the Oceans as Affected by the Provisions of the Convention on the Law of the Sea

The adoption of the Convention on the Law of the Sea in April 1982 and the signature of the treaty by 117 countries in December of the same year marked the conclusion of lengthy negotiations which had taken more than 10 years. However, not all problems related to the exploitation of deep-sea mineral resources, with which this article is concerned, have been solved. These problems will be dealt with by the Preparatory Commission set up under the terms of the Convention and related resolutions. In particular, questions related to pioneer investment activities and possible impact on land-based producers will be discussed. The author, who was directly involved in many of the negotiations, concludes that legal and institutional as well as technical and market factors will influence the future course of ocean mining activities. L'adoption de la Convention sur le droit de la mer en avril 1982 et la signature du traité par 117 pays en décembre de la même année ont marqué la fin de longues négociations qui ont duré plus de 10 ans. Toutefois, tous les problèmes concernant l'exploitation des ressources minières d'origine marine profonde, qui font l'objet de cet article, n'ont pas été résolus. Ils seront examinés par la Comission préparatoire établie selon les termes de la Convention et les résolutions connexes. En particulier, les questions ayant trait aux premiers investissements et leurs répercussions sur les producteurs conventionnels seront étudiées. L'auteur qui a été directement engagé dans plusieurs de ces négociations conclut en disant que le cours futur des activités minières marines sera influencé par des facteurs d'ordre légal, institutionnel, technique ainsi que par les conditions de marché. La adopción de la Convención sobre el Derecho del Mar en abril de 1982 y la firma del tratado por 117 países en diciembre del mismo an?o marca la conclusión de largas negociaciones que tomaron más de 10 an?os. Sin embargo no todos los problemas relacionado con la explotación de minerales en mar profundo han sido resueltos. Estos problemas serán tratados por la Comisión Preparatoria establecida bajo los términos de la Convención y resoluciones relacionadas. En particular se discutirán asuntos relacionados con inversiones pioneras y el posible impacto sobre los productores en tierra firme. El autor, quien ha participado directamente en muchas de estas negociaciones, concluye que los factores legales, institucionales así como técnicos y de mercado influenciarán el uso futuro de la minería en mar profundo.     

Education for sustainability at the United Nations: making progress?

The authors commence by discussing the role of the United Nations (UN) Commission on Sustainable Development (CSD) in relation to the field of education. The report of the UN Secretary-General to the CSD, Promoting Education, Public Awareness and Training is then evaluated. Novel proposals for the development of an Education 21 programme and for the designation of the educational community as a major group are outlined and advocated. The paper concludes with sections on what was achieved and what remains to be done; recommendations for action are made.     

Criteria for equitable allocations: the heart of international water conflict

At the heart of most international water conflicts is the question of 'equitable' allocations, criteria for which are vague and often contradictory. However, application of an equitable water-sharing agreement along the volatile waterways of the globe is a prerequisite to hydropolitical stability. This article explores the question of equity measures for water-sharing agreements in the context of global hydropolitics and is divided into three parts. The Introduction provides a brief summary of the general principles of equitable allocations. The second part of the paper describes the practice of water resources allocations as exemplified in the Transboundary Freshwater Dispute Database - a computerized database of 149 treaties relating to international water resources compiled at Oregon State University; 49 of these treaties delineate specific water allocations. The third and fourth parts of the article contrast the principles and practice of water equity. It is noticeable how rarely the general principles are explicitly invoked, particularly the extreme principles of absolute sovereignty or absolute riverain integrity. Most treaties favor existing uses, and/or guarantees to downstream riparians. It is interesting that, while many international water negotiations begin with differing legal interpretations of rights, they often shift to a needs-based criteria for water allocations. Mostly, one is struck by the creativity of the negotiators in addressing specific language to each very specific local setting and concerns.     

Estimating the potential of greenhouse gas mitigation in Kazakhstan

As part of the studies related to the obligations of the UN Framework Convention on Climate Change, the Republic of Kazakhstan started activities to inventory greenhouse gas (GHG) emissions and assess of GHG mitigation options. The objective of this paper is to present an estimate of the possibility of mitigating GHG emissions and determine the mitigation priorities. It presents a compilation of the possible options and their assessment in terms of major criteria and implementation feasibility. Taking into account the structure of GHG emissions in Kazakhstan in 1990, preliminary estimates of the potential for mitigation are presented for eight options for the energy sector and agriculture and forestry sector. The reference scenario prepared by expert assessments assumes a reduction of CO₂ emissions in 1996–1998 by about 26% from the 1990 level due to general economic decline, but then emissions increase. It is estimated that the total potential for the mitigation of CO₂ emissions for the year 2000 is 3% of the CO₂ emissions in the reference scenario. The annual reduction in methane emissions due to the estimated options can amount to 5%–6% of the 1990 level.