Recueil des cours, Collected Courses, Tome 426

Erscheinungsjahr 2022
ISBN: 978-90-04-51771-4
Verlag: Brill Academic Publishers

Buch, Englisch, Band 426, 400 Seiten, Format (B × H): 155 mm x 235 mm, Gewicht: 700 g

Reihe: Collected Courses of The Hague Academy of International Law - Recueil des cours

Pieter Jean KUIJPER, Delegation and International Organizations; As Exemplified by the United Nations and the European Union

Based on a comparative approach, this course analyzes the diverging development of the delegation of powers, in particular legislative or regulatory powers, in the UN and the EU. It is based largely on the primary sources, documents and decisions of the organs of these organizations, including the relevant judicial decisions. After a brief discussion of some basic notions involved in delegation of powers, it makes a basic distinction between delegation of a constitutional nature and delegation of an administrative law nature. It continues with a preliminary chapter on delegation of powers in a limited number of national legal systems, as it is likely that these may have had some influence on delegation within international organizations, when these were first confronted with the problem of delegation. These national systems are characterized by a strong resistance against the delegation of truly legislative powers, but at the same time by the growing and unavoidable need for delegation in specialized domains of the modern administrative state, where certainly the legislature, but in many areas also the executive, lack the necessary knowledge.

Stephen C. McCAFFREY, The Evolution of the Law of International Watercourses.

Autoren/Hrsg.

Fachgebiete

• Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht

Inhaltsverzeichnis

Pieter Jean KUIJPER, Delegation and International Organizations.

Excerpt of Table of Contents:

Chapter I. What inspired this lecture series? 21

Chapter II. Delegation of powers in national legal systems 27

A. The United States 28

B. France 35

C. Italy 48

D. Germany 55

E. National law of delegation in an administrative context: The Dutch example 63

F. Some concluding remarks on national systems of delegation 70

G. Some remaining loose ends inspired by national law and practice on legislative delegation 72

H. Some basic notions related to delegation 74

Chapter III. Delegation within the United Nations: the General Assembly and the secretariat 80

A. Delegation to a newly created body: The United Nations Adminis- trative Tribunal 80

B. The ICSC and the Molinier case: A technical delegation to a newly created body? 84

C. The Secretary-General’s bulletin on delegation of authority 89

D. The different powers delegated to the ICSC: Advisory and decisional 92

E. The story of Mr Kompass: A well-intentioned civil servant sent on administrative leave 106

F. Conclusions on delegation by the General Assembly and Secretariat. 109

Chapter IV. Delegation by the Security Council 113

A. The Tadic case 114

B. The financing of the creation and functioning of the ICTY 118

C. Delegation in connection with the application of Chapter VII UN Charter 121

D. The UN mission in Kosovo 124

E. Delegation by the Security Council to sanctions committees 128

F. UN delegation to one or more Member States and International Organizations 138

G. Conclusions on delegation by the Security Council 152

Chapter V. Delegation in the European Union 155

A. Introduction: The Meroni case 155

B. The Rome Treaty and management committees 161

C. The Single European Act of 1987 and the codification of the imple- menting committees 165

D. From the Treaty of Amsterdam and the second comitology decision to the Treaty of Nice 171

E. After the Treaty of Nice and up until the Treaty of Lisbon 177

F. The Treaty of Lisbon, delegation of legislative powers and the third comitology decision 182

G. The post-Lisbon cases and the present state of the law of delegation in the EU 191

H. Administrative delegation within the Commission and other institutions 204

I. Delegation to EU agencies 213

J. Some final remarks on delegation in the EU 225

Chapter VI. Concluding remarks 229

Stephen C. McCAFFREY, The Evolution of the Law of International Watercourses.

Chapter 1. Introduction and Overview 257

I. Overview of the Course 259

1. The Umma-Lagash Treaty (ca. 3100 BC) 259

2. Grant to a monastery by Charlemagne (805 AD) 260

3. The Peace of Westphalia (1648) 261

4. The Congress of Vienna (1815) 261

5. The First Assertion of a Rule concerning the Non-navigational Uses of International Watercourses (1856) 262

6. The “Harmon Doctrine” (1895) 262

7. The 1906 Convention between Mexico and the United States. 263

8. The US Supreme Court decision in Kansas v. Colorado (1907) 263

9. The 1909 Boundary Waters Treaty, Canada-United States. 264

10. The Madrid Resolution of the Institute of International Law (1911) 264

11. The Donauversinkung Case (1927) 264

12. The River Oder Case (1929) 265

13. The Trail Smelter Arbitration (1941) 266

14. The Salzburg Resolution of the Institute of International Law (1961) 266

15. The Helsinki Rules on the Uses of the Waters of International Rivers of the International Law Association (1966) 266

16. The Athens Resolution of the Institute of international law (1979) 267

17. International Law Commission’s draft articles on the Law of International Watercourses (1994) 267

18. Convention on the law of the non-navigational uses of inter- national watercourses (1997) 267

19. Illustrative case law 268

II. Definitions 281

Chapter 2. Fresh water and its use by humans 283

I. Introduction 283

II. The impact of climate change on shared freshwater resources. 290

III. Uneven distribution 293

IV. Water transfers 294

V. Groundwater: out of sight, out of mind? 300

1. The general characteristics of groundwater 301

2. The international legal regulation of groundwater 304

3. Groundwater in the two multilateral treaties concerning inter- national watercourses 304

4. Groundwater in case law 305

5. The ILC’s resolution on “Confined Transboundary Groundwater” 308

6. The ILC’s draft articles on the Law of Transboundary Aquifers 309

VI. Conclusion 311

Chapter 3. Beyond the Hobbesean state of nature: The perceived need for reliability of access to shared freshwater resources and early evidence of a quest for stability 313

I. Introduction 313

II. “Nasty, brutish and short” 313

III. Further evidence from treaty practice 315

IV. The quest for stability in fluvial relations 315

V. Lessons from the fate of the “Harmon Doctrine” 318

1. Background 318

2. Harmon’s Opinion 322

3. The events following the issuance of Harmon’s opinion 325

VI. The 1906 Treaty 329

VII. Conclusion 330

Chapter 4. Navigation: nature’s highways in a forested land 331

I. Introduction 331

II. Early practice 331

III. Development of the law of navigational uses of international watercourses in Western Europe 333

IV. Influential cases and the law as it stands today 338

V. The River Oder case 339

VI. The Oscar Chinn case 341

VII. The Navigational and Related Rights case 343

VIII. The Contributions of Learned Societies 346

IX. Conclusions 349

Chapter 5. Evolution of the law governing the non-navigational uses of international watercourses 351

I. Introduction 351

II. Ancient times 351

III. The Institute of International Law 360

IV. The International Law Association 363

V. Indicia of the evolution of the law 366

1. From preeminence of navigation to the absence of inherent priorities 366

2. From the surface water channel to the system of waters 368

3. From piecemeal problem-solving to integrated management and development 372

4. From protection of fisheries to protection of fish 374

5. From “no harm” to equitable utilization 376

Chapter 6. Conclusions and outlook 381

I. Some conclusions 381

II. Outlook 384

Über Autor(innen)

Pieter Jan Kuijper, born in Olst, Netherlands, on 5 October 1946. Education: Law degree cum laude, University of Leiden (1970). MA in International Relations with distinction, Johns Hopkins School of Advanced International Studies, Washington DC (1971). PhD in Law, University of Amsterdam (UvA) (1978), with doctoral dissertation: “The Implementation of International Sanctions: The Netherlands and Rhodesia”.

Academic posts: Lecturer in the Law of International Organizations, Law Faculty, University of Leiden (1972-1979). Fellowship, Netherlands Institute for Academic Studies in the Humanities and the Social Sciences in Wassenaar (1977-1978). Professor of International Law, International Relations Department, Faculty of Social Sciences, UvA (1984-1987). Visiting Professor, Université Catholique de Louvain-la-Neuve (1987-1991), University of Michigan (1994), UvA (1995-2007), and Université Libre de Bruxelles (2004-2007). Emeritus Professor of the Law of International (Economic) Organizations, Faculty of Law, UvA (since 2018). Former editor of Common Market Law Review, Legal Issues of Economic Integration and the Journal of International Economic Law. Recipient of the Maastricht Prize for International Law (2015).

Professional roles: Member of the Legal Service of the Commission of the European Communities (1979-1984, 1987-1999, 2002-2007). Director of the Legal Affairs Division of the Secretariat of the World Trade Organization (1999-2002). Legal Adviser and Director of the External Relations and International Trade team, Legal Service of the European Commission (2002-2007).

Stephen C. McCaffrey, born 21 January 1945, in San Mateo, California, USA. Carol Olson Endowed Professor of International Law at the University of the Pacific, McGeorge School of Law in Sacramento, California. BA degree from the University of Colorado (1967), JD degree from the University of California, Berkeley (1971), Dr. iur. degree from the University of Cologne (1974). 2017 Laureate of the Stockholm Water Prize, presented by the King of Sweden. Two terms on the UN International Law Commission (ILC), chair of the ILC for its 1987 session, and Commission’s special rapporteur on international watercourses. The ILC’s work on that topic formed the basis of the negotiation of the 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses. 2018 recipient of the Elisabeth Haub Award for Environmental Law and Diplomacy and the recipient, in 2007, of the Order of the Dual White Cross, Republic of Slovakia (the highest distinction awarded by Slovakia to foreign nationals). Elected twice by the parties to the UNECE Water Convention as a member of that agreement’s Implementation Committee. Served as counsel to States in cases before the International Court of Justice and the Permanent Court of Arbitration and extensive publications in the fields of public international law, the law of international watercourses and international environmental law.