Aspects of International Law of Resources and Environment I 2nd Session States and Resources

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Aspects of International Law of Resources and
Environment I2nd SessionStates and Resources
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IL Agenda
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Topics for Students Presentations
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Todays Agenda

• Revision of the 1st Session
• State and Sovereignty
• Cooperation between States Law and International
  Organisations
• International Law of Transnational Watercourses
• Law of the Sea

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What is Law?

• set of rules of conduct
• made by an organised entity (i.p. a state)
• governing the relationships between people and
  organisations
• providing means of enforcement and / or
  punishment of those who do not comply with the
  rules

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Addressees of Law (1)

• General definition
• an individual or an entity that has rights
  and/or duties under a law

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Addressees of Law (2)

• Possible addressees
• individuals
• private entities (e.g. companies, associations)
• states
• supranational and international organisations
• (depending on the specific law that is
  applicable to a particular case)

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National and International Public and Private Law
(1)
State A
Overview
National Public Law
National Private Law
STATE
Public International Law
International Private Law
company
State B
individual
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National and International Public and Private Law
(2)
State A
National Public Law (different in state A and
state B)
STATE
STATE
State B
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National and International Public and Private Law
(3)
State A
National Private Law (different in state A and
state B)
State B
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National and International Public and Private Law
(4)
State A
Public International Law
State B
International Organisation
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National and International Public and Private Law
(5)
State A
International Private Law
State B
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Sources of Law (1)

• Types
• legislation
• acts made by parliament
• delegated legislation (law made outside
  parliament, e.g. by government or local
  authority)
• judge-made law
• customary law
• treaties

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Sources of Law (2)

• Levels
• local government
• state within a federal state / province
• national
• supranational (e.g. EU)
• international
• (no universal hierarchy within national law
  priority is a matter of definition)

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Conflict of Laws

• because the dividing lines between the different
  sources of law are not always unambiguous,
  conflicts between different laws may arise (e.g.
  between different national laws)
• therefore rules / mechanisms needed to solve
  conflicts (e.g. PIL)

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Execution and Enforcement of Law

• For law to be efficient, means are needed to
  ensure that it is executed and if necessary
  enforced.
• Such means are
• a well-organised system of executing bodies (i.p.
  in administrative law)
• a functioning court system incl. procedural rules
• sanctions for non-compliance (e.g. loss of
  rights, fines, imprisonment)

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Construction / Interpretation of Law (1)

• the process of determining how the provisions
  of the general law relate to a specific legal
  case
• necessary because acts, contracts, judgements
  etc. are not always unambiguous (e.g. due to
  compromises in the course of enactment,
  unforeseen situations, change in meaning)
• the rules apply similarly to acts and contracts
  (there are specific rules on the treatment of
  judgements in common law)

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Construction / Interpretation of Law (2)

• Established rules / approaches
• ordinary meaning rule ( words must be given
  their plain, ordinary and literal meaning)
• systematic approach (a provision must be looked
  upon in its systematic context, e.g. position
  within the act, interaction with other
  provisions)
• purposive approach (the purpose of the provision
  has to be taken into account)
• historical approach ( the situation at the time
  the provision was made and subsequent
  developments have to be considered)

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Interpretation Example 1 (Nazi Symbols)
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Section 86a German Criminal CodeUse of Symbols
of Unconstitutional Organizations

• (1) Whoever
• 1. domestically distributes or publicly uses, in
  a meeting or in writings disseminated by him,
  symbols of one of the parties or organizations
  indicated in Section 86 (1), no. 1, 2 and 4 or
• 2. (...)
• shall be punished with imprisonment for not more
  than three years or a fine.
• (2) Symbols, within the meaning of subsection
  (1), shall be, in particular, flags, insignia,
  uniforms, slogans and forms of greeting. Symbols
  which are so similar as to be mistaken for those
  named in sentence 1 shall be deemed to be
  equivalent thereto.
• Section 86 (1) no. 4
• means of propaganda, the contents of which are
  intended to further the aims of a former National
  Socialist organization

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Interpretation Example 2 (Waste)

• Definition of Waste (Directive 2006/12/EC)
• "waste" shall mean any substance or object in
  the categories set out in Annex I which the
  holder discards or intends or is required to
  discard

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Categories of Waste (Annex I)

• Production or consumption residues not otherwise
  specified below
• Off-specification products
• Products whose date for appropriate use has
  expired
• Materials spilled, lost or having undergone other
  mishap, including any materials, equipment, etc.,
  contaminated as a result of the mishap
• Materials contaminated or soiled as a result of
  planned actions (e.g. residues from cleaning
  operations, packing materials, containers, etc.)
• Unusable parts (e.g. reject batteries, exhausted
  catalysts, etc.)
• Substances which no longer perform satisfactorily
  (e.g. contaminated acids, contaminated solvents,
  exhausted tempering salts, etc.)
• Residues of industrial processes (e.g. slags,
  still bottoms, etc.)

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Categories of Waste (Annex I)

• Residues from pollution abatement processes (e.g.
  scrubber sludges, baghouse dusts, spent filters,
  etc.)
• Machining/finishing residues (e.g. lathe
  turnings, mill scales, etc.)
• Residues from raw materials extraction and
  processing (e.g. mining residues, oil field
  slops, etc.)
• Adulterated materials (e.g. oils contaminated
  with PCBs, etc.)
• Any materials, substances or products the use of
  which has been banned by law
• Products for which the holder has no further use
  (e.g. agricultural, household, office, commercial
  and shop discards, etc.)
• Contaminated materials, substances or products
  resulting from remedial action with respect to
  land
• Any materials, substances or products which are
  not contained in the above mentioned categories.

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States
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Definition of a State

• The state as a subject of international law
  should possess the following qualifications
• 1. a permanent population,
• 2. a defined territory,
• 3. a government (effective control by a
  government over the territory sovereignty)

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Territory of a State

• comprises
• 1. the land within its boundaries, including the
  subsoil,
• 2. internal waters, such as lakes, rivers and
  canals,
• 3. the territorial sea and
• 4. the airspace above its land, internal waters
  and territorial sea, up to the point at which the
  legal regime of the outer space begins.

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Effective Control by a Government of the Territory

• only necessary to exist in the beginning
• - because of later loss of effective control
  entity does not lose legal qualification to be a
  state (failed state)

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Devided Territory A Problem? (Aserbaidshan)
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Occupied Territory Still Part of the State
(Georgia)
South Ossetia
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Failed State (Somalia)
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Exclusive and General Legal Characteristics of
States

• 1. States have exclusive jurisdiction regarding
  their territory.
• 2. States have plenary competence to perform
  acts in the international sphere (to make
  treaties etc.)
• 3. States are not subject to international
  proceedings without their consent.
• 4. States are regarded in international law as
  equal, it is a formal, not a political or moral
  principle.
• 5. Any derogation from the previous principles
  must be clearly established.

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Jurisdiction of States (I)

• Jurisdiction is the term that describes the
• limits of the legal competence of a state to
• make, apply and enforce rules of conduct
• upon persons.

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Jurisdiction of States (II)

• legislative/prescriptive jurisdiction (powers to
  legislate in respect of the persons, property, or
  events in question)
• judicial/adjudicative jurisdiction (powers of a
  states court to hear cases concerning the
  persons, property or events in question)
• enforcement jurisdiction (powers of physical
  interference exercised by the executive , such as
  arrest of persons, seizure of property, and so
  on)

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State Immunity from Jurisdiction

• A state (and its officials) can claim freedom
  from jurisdiction of another state for acts
  performed in exercise of sovereign authority
  (commercial actions are therefore not included).

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Differences between International Public Law and
National Law

• National Law
• Typically three functions of a state
• law-making by a legislature
• law determination by courts
• law enforcement by army, police or administration
• based more on command, obedience and enforcement

• International Public Law
• Horizontal legal system states are considering
  themselves in formal terms as equal and
  sovereign, lacking a supreme authority, a
  centralisation of the use of force and
  differentiation of between the three functions
  comparable to national law)
• ? based more on consensus and reciprocity (but
  spectacular cases of violation of international
  law exceptional

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Spatial Zones

• State territory
• Exclusive Economic Zone
• Continental Shelf
• High Seas (res communis)
• International Seabed (Common Heritage of Mankind)
• Antarctic (Special Treaty Regime)
• Outer Space (res communis)

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Ocean Zones
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Antarctic Territoral Claims
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Antarctic

• Territorial claims by seven states have been made
  to the Antarctic region (Argentina, Australia,
  Chile, France, New Zealand Norway and the UK)
• Claims not accepted by most other states
• 1959 signature of Antarctic treaty by all states
  concerned with territorial claims in the region
  declaring the demilitarisation of the area and
  suspending all territorial claims during the
  lifetime of the treaty

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Public International Law
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National and International Public and Private Law
State A
Overview
National Public Law
National Private Law
STATE
Public International Law
International Private Law
company
State B
individual
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Quotation of the international law
scholar Höling (1960)In all positive law is
hidden the element of power and the element of
interest. Law is not the same as power, nor is it
the same as interest, but it gives expression to
the former power-relation. Law has the
inclination to serve primarily the interests of
the powerful. European international law, the
traditional law of nations, makes no exception of
this rule. It served the interest of the
prosperous nations.
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Definition of Public International Law

• Body of law which applies to states and other
  subjects of international law and which regulates
  the relations between them.

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Addressees/Subjects of Law (1)

• General definition
• an individual or an entity that has rights
  and/or duties under a law

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Addressees/Subjects of Law (2)

• Possible addressees/subjects
• individuals
• private entities (e.g. companies, associations)
• states
• supranational and international organisations
• (depending on the specific law that is
  applicable to a particular case)

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Addresses/Subjects in International Public Law

• States
• International Organisations
• Individuals
• (Transnational Corporations)

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Steps Involved in Pursuing Ones Rights
Material Law (theoretical) establishment of
existence of rights/duties Basis all facts of
the case
Procedural Law court judgement or authority
ruling on existence of rights/duties Basis only
facts that can be proven
Enforcement enforcement of judgement or
ruling Basis judgement/ruling, no matter if
right or wrong
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What is Law?

• set of rules of conduct
• made by an organised entity (i.p. a state)
• governing the relationships between people and
  organisations
• providing means of enforcement and / or
  punishment of those who do not comply with the
  rules

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Doubts about the Quality of Law Regarding PIL

• PIL lacks a legislature
• States cannot be brought before international
  courts without their prior consent
• No centrally organised system of sanctions

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Sources of IL Function / Character

• Function
• to establish what the rules of law in the field
  of IL are (in general in relation to a
  particular issue)
• Character (different from national law)
• no constitution as a fundamental source of law
• no lawmaker comparable to a parliament

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Sources of IL - Types

• Primary Sources
• international treaties (conventions)
• international custom
• the general principles of law recognised by
  civilised nations
• Subsidiary means of determing/proving the rules
• judicial decisions and teachings of IL experts
• resolutions of international organisations (if
  not binding)
• (see Art. 38 (1) Statute of the International
  Court of Justice of 1920)

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Sources of IL - Hierarchy

• There is no fixed hierarchy between the
  different types of (primary) sources.
• General principles
• A later rule prevails over an earlier rule (lex
  posterior derogat legi priori).
• A special rule prevails over a general rule (lex
  specialis derogat legi generali).

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Differences between International Public Law and
National Law

• National Law
• Typically three functions of a state
• law-making by a legislature
• law determination by courts
• law enforcement by army, police or administration
• based more on command, obedience and enforcement

• International Public Law
• Horizontal legal system states are considering
  themselves in formal terms as equal and
  sovereign, lacking a supreme authority, a
  centralisation of the use of force and
  differentiation of between the three functions
  comparable to national law)
• ? based more on consensus and reciprocity (but
  spectacular cases of violation of international
  law exceptional

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Dams and International Watercourses
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Public Law-Related Problems in Dam-Construction

• Transnational Problems (International Law
  regarding International Watercourses)
• Environmental Impact Assessment
• Construction Permit (National Law)
• Expropriation/Resettlement
• (Clean Development Mechanism/Kyoto)

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Standards

• 1. International Standards
• International Treaties (e.g. European Convention
  on Human Rights or Convention on Transnational
  Watercourses)
• Unilateral Standards of International/National
  Institutions (e.g. World Bank)
• National Standards
• National Statutes
• Unilateral Standards of National Institutions
  (e.g. Export Credit Agencies)

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What are ECAs?

• Export Credit Agencies, commonly known as ECAs,
  are agencies that provide government-backed
  loans, guarantees, credits and insurance to
  private corporations from their home country to
  do business abroad, particularly in the
  financially and politically risky developing
  world. Most industrialized nations have at least
  one ECA, which is usually an official or
  quasi-official branch of their government.
• Today, ECAs are collectively among the largest
  sources of public financial support for foreign
  corporate involvement in industrial projects in
  the developing world. For example, ECAs are
  estimated to support twice the amount of oil, gas
  and mining projects as do all Multilateral
  Development Banks such as the World Bank Group.
  Half of all new greenhouse gas-emitting
  industrial projects in developing countries have
  some form of ECA support. ECAs often back such
  projects even though the World Bank Group and
  other multilateral banks find them too risky and
  potentially harmful to support.

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Infrastructure Project Financing
DIRECT CREDITORS
Project financing Guidelines
Project financing Guidelines ???
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Environmental Impact AssessmentLegal Problems

• Standard (National, World Bank, ECAs)
• Requirement of EIA (Screening)
• Scope (what issues and impacts should the EIA
  address)
• Rights for Participation (of the public, other
  state authorities, other states)
• Importance within the proceedings
• Legal protection

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Transnational Problems

• Standard (Convention on Transboundary
  Watercourses, World Bank)
• Allocation
• Water Quality

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Water Resources Principles of Allocation

• 1.Territorial sovereignty
• 2.Territorial integrity
• 3.Equitable utilisation
• 4.Common management

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Equitable and Reasonable Utilization and
Participation (Art. 5 UN Watercourses Convention)

• 1.    Watercourse States shall in their
  respective territories utilize an international
  watercourse in an equitable and reasonable
  manner. In particular, an international
  watercourse shall be used and developed by
  watercourse States with a view to attaining
  optimal and sustainable utilization there of and
  benefits there from, taking into account the
  interests of the watercourse States concerned,
  consistent with adequate protection of the
  watercourse.
• 2. ...

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Art. 6 (1) UN Watercourses Convention
Utilization of an international watercourse in an
equitable and reasonable manner within the
meaning of article 5 requires taking into account
all relevant factors and circumstances, including

• (a) Geographic, hydrographic, hydrological,
  climatic, ecological and other factors of a
  natural character
• (b) The social and economic needs of the
  watercourse States concerned
• (c) The population dependent on the watercourse
  in each watercourse State
• (d) The effects of the use or uses of the
  watercourses 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 the water resources of the
  watercourse and the costs of measures taken to
  that effect
• (g) The availability of alternatives, of
  comparable value, to a particular planned or
  existing use.

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Obligation Not to Cause Significant Harm (Art. 7
UN Watercourses Convention)

• 1.    Watercourse States shall, in utilizing an
  international watercourse in their territories,
  take all appropriate measures to prevent the
  causing of significant harm to other watercourse
  States.
• 2.

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Communication Notification, Consultation,
Negotiation (Definitions)

• Notification simply requires the providing of
  information without a mutual exchange
• Consultations require a dialogue amongst
  parties without an obligation of a reasonable
  compromise and therefore result
• Negotiations require a dialogue aimed at
  reaching a compromise

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States Obligations to Communicate (Concerning a
Future Use of a Watercourse/UN Watercourses
Convention)

• 1.Timely notification if possibly adverse effects
  of a planned measure (Art.12)
• 2.Six months time to respond without
  implementation of the measures (Art.13 a, b,
  Art.14 b)
• 3. Parties must enter into consultatitons, if the
  notified state does not accept the measure
  because of a not equitable utilization or a
  substantial harm (Art.17 (1))
• 4.Should the consultations and negotiations fail
  the Convention offers dispute settlement
  provisions for impartial fact finding (if
  requested by one party) and mediation (if agreed
  by both parties) (Art. 33 (3) (4))