Anthony Aust. Handbook of International Law

Подождите немного. Документ загружается.

45. A detailed account of international watercourses, albeit more from an environmental perspective, is in

Birnie and Boyle, International Law and the Environment, 2nd edn, Oxford, 2002, pp. 298–331.

46. See p. 40 above.

47. Oppenheim. p. 582, text to n. 7.

48. 7 LNTS 35; UKTS (1923) 28. Oppenheim, pp. 580–2.

Page 365

freedom of navigation for particular international rivers have been concluded.

The Rhine

The Rhine is the most important Western European river, passing as it does from the North Sea

through The Netherlands to Switzerland. Since 1815, it has been recognised as an international river

with freedom of navigation, and is currently managed by the Central Commission for Navigation on

the Rhine (CCNR), established by the Mannheim Convention, as revised on 17 October 1963,

the

members of which are Belgium, France, Germany, The Netherlands and Switzerland.

The Danube

The previous regime for freedom of navigation on the Danube and its administration by an

international commission

was replaced by the so-called Belgrade Convention of 18 August 1948

to which only communist states of Eastern Europe were original parties, although (fittingly) Austria

also acceded in 1960. It repeats the provisions of earlier treaties that guaranteed freedom of

navigation on the Danube on a basis of equality for the commercial vessels and goods of all states.

The Danube River Protection Convention of 29 June 1994 (DRPC) aims to achieve sustainable and

equitable water management in the Danube Basin, in particular to deal with pollution. The parties

are eleven of the Danube’s riparian states and the European Community. The International

Commission for the Protection of the Danube River (ICPDR) administers the Convention.

Other uses of watercourses

In the past, treaties about the use of international rivers (or more correctly ‘watercourses’, since

‘river’ may imply that all of it is navigable) were mainly concerned with navigation. In more recent

years, concern about other uses of their waters, that are often vital to the states through which the

watercourses or their tributaries flow, have led to various treaties dealing with the way water is

extracted and other important economic and

49. For references to such treaties for non-European rivers, see Oppenheim, p. 576, n. 6.

50. For the text and the five subsequent Protocols, see www.ccr-zkr.org.

51. See Oppenheim, pp. 575–80.

52. 33 UNTS 181 (No. 518).

53. www.icpdr.org/danubis/.

Page 366

environmental matters. The problems of balancing the opposing interests of upstream and

downstream states, including issues raised by human intervention, such as building dams, have been

especially acute.

Convention on the Law of the Non-Navigational Uses of International Watercourses

Based on a draft prepared by the ILC, the Convention was adopted by the UN General Assembly in

1997.

It covers non-navigational uses of, and measures of protection, preservation and

management related to, international watercourses and their waters. The Convention defines

‘watercourse’ as ‘a system of surface waters and groundwaters constituting by virtue of their

physical relationship a unitary whole [so including rivers, lakes, aquifers, glaciers, reservoirs and

canals that are interrelated with one another], and normally flowing into a common terminus’, and

‘international watercourse’ as ‘a watercourse, parts of which are situated in different states’. Since

the problems are specific to each watercourse, the Convention does not affect existing treaties.

The parties can conclude treaties which apply or adjust the provisions of the Convention to the

characteristics and uses of a particular watercourse, provided it does not adversely affect to a

significant extent the use by another party without its express consent (Article 3). An international

watercourse must be used in an equitable and reasonable manner. The aim is to attain optimal and

sustainable utilisation, taking into account the interests of the watercourse states concerned,

consistent with adequate protection of the watercourse (Article 5). The Convention is therefore a

framework of general and residual principles within which the parties can work to produce a regime

suited to a particular watercourse. The ICJ has already endorsed the basic principles of the

Convention.

So far, only fourteen states have ratified the Convention. Since it will enter into force only when

thirty-five states have ratified, it is not likely to do so for many years, if ever. But a state concerned

with a particular watercourse, whether or not it is a party to the Convention, may prefer

54. See S. McCaffrey, The Law of International Watercourses, Oxford, 2001.

55. ILM (1997) 719. For the text, the ILC final draft Articles and commentary, and a useful introduction,

see A. Watts, The International Law Commission 1949–1998, Oxford, 1999, vol. , pp. 1331–446.

56. As to which, see Birnie and Boyle, International Law and the Environment, 2nd edn, Oxford, 2002, pp.

323–9.

57. Case concerning the Gabcíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports (1997), p. 7,

para. 85; ILM (1998) 162; 116 ILR 1.

Page 367

merely to draw upon it when devising or amending a regime. A recent treaty was the Revised

Protocol on Shared Watercourses in the Southern African Development Community 2000.

Outer space

Christol, The Modern International Law of Outer Space, New York, 1982

Christol, Space Law, Deventer, 1991

Cheng, Studies in International Space Law, Oxford, 1997

Oppenheim. Oppenheim’s International Law, 9th edn, London, 1992, pp. 826–45

Gardiner, International Law, London, 2003, pp. 394, 400–1, 406 and 424–9

www.spacelawstation.com

Outer space begins where airspace ends, although exactly where that is cannot be determined. But a

commonsense definition might be: anywhere above the earth where aircraft cannot fly because they

cannot ‘derive support in the atmosphere from the reactions of the air’,

although that may now be

too simple given that the Space Shuttle depends at different times of its journey on rocket propulsion

and aerodynamic lift.

Outer space treaties

The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer

Space 1967 (Outer Space Treaty),

represented a deal between the Soviet Union and the United

States. It now has some 100 parties, including all those states that are directly involved in a

significant way in outer space activities. The Treaty’s basic principles repeat the terms of earlier UN

General Assembly resolutions,

and they can now be regarded as representing customary

international law.

The principles, which draw in part from principles relating to the freedom of navigation and the

provisions of the Antarctic Treaty, are: (1) outer space (defined as including the Moon and other

celestial bodies – except of course the Earth) is the province of all mankind, and its exploration

58. ILM (2001) 317.

59. See p. 346 above on the definition of national airspace.

60. See also the website of the UN Committee on the Peaceful Uses of Outer Space (COPUOS) and its

Legal Sub-committee, www.oosa.unvienna.org/COPUOS/.

61. 610 UNTS 205 (No. 8843); ILM (1967) 386; UKTS (1968) 10; TIAS 6347. Russia, the UK and the US

are joint depositaries (see p. 109 above) of this Cold War treaty, as well as the Astronauts Agreement and

the Liability Convention.

62. 1721 ( ), 1884 ( ) and 1962 ( ).

63. See p. 6 above and Shaw, p. 481.

Page 368

must be carried out for the benefit of all states in accordance with international law; (2) outer space

cannot be appropriated by claim of sovereignty, means of use or occupation, or any other means; (3)

outer space is free for scientific investigation; (4) no weapons of mass destruction may be put in

orbit around the earth or installed on celestial bodies or stationed in outer space; (5) the moon and

other celestial bodies must be used exclusively for peaceful purposes, and military equipment or

activities of any kind are prohibited, although military personnel may be used for peaceful

purposes;

(6) when in outer space astronauts must help other astronauts in distress, and states must

help astronauts of other states who land in their territory or on the high seas (elaborated in the

Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects

Launched into Outer Space 1968 (Astronauts Agreement);

(7) a state is internationally responsible

for all activities in outer space carried out by it or its nationals, public or private, and the state which

launches or procures the launching of a space object, or from whose territory or facility a space

object is launched, is liable for any damage caused whether on Earth, in the air or in outer space

(elaborated in the Convention on International Liability for Damage caused by Space Objects 1972

(Liability Convention) with provisions for absolute and fault liability);

and (8) a state retains

jurisdiction and control over any object on its registry which is launched into outer space,

registration with the UN Secretary-General being required by the Convention on Registration of

Objects Launched into Outer Space 1975 (Registration Convention).

The Moon Treaty 1979

declares the moon and its natural resources to be the ‘common heritage

of mankind’, and that the parties will establish an international regime to govern exploitation of the

moon once this ‘is about to become feasible’ (Article 11(5)). The Treaty, which also covers all other

celestial bodies (except the Earth), was controversial from the start, and those states that have

invested heavily in space exploration have been wary of it. Consequently, although the Treaty

entered into force in 1984, it has only eleven parties, none of which are significant actors in space.

When exploitation does become feasible, one can expect the major space players to promote another

treaty better suited to the needs of that time.

64. The Nuclear Test-Ban Treaty 1963, 480 UNTS 43 (No. 6964); UKTS (1964) 3; TIAS 544, prohibits

tests also in outer space.

65. 672 UNTS 119 (No. 9574); ILM (1968) 149. It has been widely ratified.

66. 961 UNTS 187 (No. 13810); ILM (1971) 965; UKTS (194) 16; TIAS 7762.

67. 1023 UNTS 15 (No. 15020); ILM (1975) 43. It has forty-five parties.

68. 1363 UNTS 3 (No. 23002); ILM (1979) 1434.

Page 369

The geostationary orbit

The main use of space is for satellites used for navigation, meteorology, broadcasting and remote

sensing (the observation of the earth for civil or military purposes). UNGA Resolution 41/65 of

1986 affirmed that outer space can be used for remote sensing by all, no prior permission being

needed.

Most satellites need to move in an orbit at about 35,900 kms above the Earth, and at a

speed that will allow them to remain above the same point on the earth’s surface (geostationary

orbit). For maximum effectiveness, that point needs to be over the equator so that the satellite can

receive from, and transmit to, most populated areas. The geostationary orbit can accommodate only

a limited number of satellites, so it is a valuable resource. Since 1976, eight equatorial states have

asserted that it is a natural resource belonging to them since it is exclusively the gravitational

phenomena generated by their part of the earth that lies beneath the orbit that creates the

geostationary orbit. This wildly unscientific argument has not been successful: the gravitational pull

depends on the whole Earth, and the geostationary orbit depends also on the speed of the satellite.

Moreover, since the orbit is clearly part of outer space, it cannot be appropriated by any state.

The International Space Station

The International Space Station is governed by an Agreement of 1998 between Canada, member

states of the European Space Agency, Japan, Russia and the United States.

It provides a

framework for long-term international collaboration in the design, development, operation and

utilisation of the station under the leadership of the United States. The provisions in Articles 21 and

22 on intellectual property and criminal jurisdiction are particularly interesting.

International space organisations

The five universal outer space treaties all take account of the fact that space activities are often

carried out in collaboration with other states or within the framework of an international

organisation. In particular,

69. See Oppenheim, pp. 844–5.

70. See further Gardiner, International Law, London, 2003, pp. 424–5.

71. See www.spacelawstation.com/international.html.

Page 370

Article of the Liability Convention provides that, if an international organisation is liable for

damage, those states parties to the Convention which are members of the organisation are jointly and

severally liable with the organisation for the damage, and, if the organisation does not pay

compensation as agreed or determined, those states parties are then liable to pay. This is contrary to

the usual legal position.

Intelsat

UNGA Res. 41/65 of 1986 adopted the principle that global satellite communications should be

made available on a non-discriminatory basis. The purpose of the International Telecommunications

Satellite Organization (INTELSAT) is to establish and operate such a system. INTELSAT grew out

of a consortium and in 1964 was established as an international organisation by a treaty and related

Operating Agreement, to which the member states or their public or private telecommunications

entities are parties. Membership is open to all ITU members. INTELSAT has its headquarters in

Washington.

Inmarsat

The International Maritime Satellite Organization (INMARSAT) was established by treaty in 1976

to provide mobile satellite communications, initially for shipping. As with INTELSAT, there was a

related Operating Agreement to which the member states or their public or private

telecommunications entities are parties. Since 1999, INMARSAT has been a limited company

operating geostationary satellites. Its headquarters are in London.

European Space Agency

The European Space Agency is the main regional organisation devoted to the launch of satellites,

space science and other space activities.

It is not an EU body.

72. See p. 407 below.

73. www.intelsat.com.

74. 1143 UNTS 105 (No. 17948); ILM (1976) 1051; UKTS (1979) 94; TIAS 9605. See ILM (1988) 691

for the 1988 amendment.

75. www.inmarsat.org.