1 International Cooperation on Shared Natural Resources

Dinah Shelton1

New approaches to achieving effective environmental protection emerge with greater knowledge and understanding of the biosphere and its components. As the global and multidimensional character of environmental problems has become clear, most States now accept that holistic international efforts are required to address many aspects of environmental deterioration, including marine pollution and living resources, depletion of stratospheric ozone, and climate change. Each of these issues can be seen to involve a shared natural resource, a concept that has moved beyond the traditional scope of addressing transboundary resources to encompass areas beyond national jurisdiction as well as natural processes like climate change. An ecosystem approach that considers the totality of impacts, even when the ecosystem crosses national boundaries, is stressed in the current work of international bodies concerned with environmental protection. Early legal measures for the joint or common management of shared resources are thus being extended to large ecosystems.

Without international regulation, particularly for areas beyond national jurisdiction, shared natural resources are vulnerable to the ‘tragedy of the commons’, becoming depleted or exhausted as each State seeks to maximize its own benefit by exploiting the resource. International cooperation is required to prevent this result, and the general international obligation to cooperate in addressing international problems therefore must be applied to shared resources. States should cooperate in the conservation, management, and restoration of natural resources that occur in areas under the jurisdiction of more than one State or fully or partly in areas beyond the limits of national jurisdiction, treating the natural system as a single ecological unit. As Iwona Rummel-Bulska describes in Chapter 2, the process of achieving such cooperation through negotiating transboundary agreements can be difficult because of doctrines of sovereignty and the problems of national debt, technology transfer, and financial resources. The role of public pressure and nongovernmental organizations is critical to achieving a sound result.

Various treaties have long existed on some transboundary resources, such as migratory species2. Others have addressed commons areas like Antarctica or regional seas like the Mediterranean and Baltic. More recently, the 1997 New York Watercourses Convention, discussed further below, created a framework for negotiating agreements on the critical issue of shared aquatic systems. Many of the case studies in this volume analyze particular watercourse agreements in the context of the 1997 convention. Despite the increasing number of subregional agreements, the only general instrument on shared resources is a nonbinding text drawn up under the auspices of the United Nations Environment Programme (UNEP) in 1978: the Draft Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States. The principles have proved very influential in the development of many agreements, particularly those concerning transnational parks and protected areas, as seen in Chapter 6, by Katharina Diehl and Alois Lang, on the cross-border national park shared by Hungary and Austria.

1.1 Shared resources management

The concept of joint management of shared resources began with commercially exploited species and international watercourses.3 Establishment of permanent institutions or rules for joint management reflected the ecological reality of a shared resource. Common or joint management is not a new technique – it was used as early as the nineteenth century in the Convention on Navigation of the Rhine and later in the 1911 Conventoin Respecting Measures for the Preservation and Protection of the Fur Seals in the North Pacific Ocean – but it is increasingly applied to international watercourses and to shared ecosystems such as the Alps and the Arctic. Almost half the Earth's land surface lies within 263 international river basins – that is, those that traverse political boundaries.4 The Congo, Niger, Nile, Rhine, and Zambesi, for example, are each shared by more than nine countries. The essential need for water and the potential conflicts that can arise from competition over it makes it important that countries reach agreement on sharing water resources. State practice demonstrates awareness of this fact: the first known international water agreement dates back to the settlement of a water dispute over the Tigris River between the Sumerian city-states of Lagash and Umma (in 2500 BC).5 The Food and Agriculture Organization (FAO) has identified more than 3,600 international water treaties concluded between 805 and 1984. Since 1948, States have adopted 295 international water agreements.6

Early agreements mostly aimed to regulate navigation and demarcate boundaries, but the development of hydropower and large-scale irrigation development in the twentieth century shifted the focus to reconciling nonnavigational uses. Now better knowledge and understanding of ecosystems and their natural processes lead States to conclude more comprehensive agreements protecting freshwater resources as hydrographic units rather than as individual watercourses. These agreements recognize the difficult problem of balancing competing demands and differences between upstream and downstream States and their varied interests, including agriculture, industry, recreation, flood control, hydropower, environmental protection, and human health. The physical, economic, and social disparities between riparian nations can make management complex. An integrated approach offers a legal framework to reconcile differences and make choices. When coupled with joint or shared management and monitoring, water basin agreements may provide the structure for effective environmental protection in the context of sustainable development.

The 1987 Agreement on the Action Plan for the Environmentally Sound Management of the Common Zambezi River System was one of the first to adopt a holistic approach to water resources management through an entire river system. Although the Action Plan is not legally binding, it provides the framework for action for the riparian States. The use of a ‘soft law’ instrument may reflect the fact that basin conditions and priorities may change considerably over time, necessitating flexibility in provisions and institutions. Water allocation, in particular, may vary according to availability, changing needs and values. In contrast to the approach of the Zambezi States, the newly independent countries around the Aral Sea adopted a series of binding agreements between 1993 and 1999 on water-related activities, improving the environment, and economic development of the region.7 Similarly, countries in the Southern African Development Community adopted a protocol on shared water systems on August 28, 1995, and revised it on August 7, 2000.

Despite the large number of positive developments, more than half the international water basins lack a cooperative management framework.8 In addition, many of the older agreements lack provisions on water quality management, monitoring, public participation, flexible allocation, and dispute resolution. Future agreements may be developed within the legal framework of the 1997 U.N. Convention on the Law of the Non-navigational Uses of International Watercourses, which includes the ‘obligation not to cause significant harm’. Article 5 requires equitable and reasonable use. Watercourse States should use and develop the watercourse to obtain optimal and sustainable use thereof and benefits consistent with adequate protection of the watercourse. All watercourse States should participate in the use, sustainable development, and protection of an international watercourse in an equitable and reasonable manner, which includes both the right to use the watercourse and the duty to cooperate in the protection and development of it. These principles, together with an adaptable management structure and flexible criteria for maintaining water quality and quantity, can promote holistic water management.

In the context of international agreements, the environmental unity of international watercourses has led to recognition of the need for common management with the active participation of all concerned States. Article 24 of the 1997 treaty on international watercourses stops short of mandating the establishment of joint management, but it provides that watercourse States must enter into consultations concerning management, including possible creation of a joint management mechanism, at the request of any of the concerned States. In this regard, management means planning the sustainable development of the watercourse and implementation of any plans adopted. It also means promoting the rational and optimal use and the protection and control of the watercourse. Such joint management has been adopted in many regions of the world. The Great Lakes, which contain one-fifth of the world's freshwaters, are jointly managed by the United States and Canada pursuant to a 1909 Boundary Waters Treaty through the International Joint Commission, an independent bilateral agency. The Commission today also addresses transboundary air pollution. Namibia and South Africa also have created a permanent water commission.

Agreements among interested States call for common management of, inter alia, the Niger, the Mekong, the Danube, the Meuse, the Scheldt, the Zambezi, the Mosel, the Mahakali (Nepal-India), the Ganges (India-Bangladesh), and the La Plata rivers as well as the Lake Chad basin. A declaration of principles between Jordan, the Palestine Liberation Organization, and the State of Israel seeks cooperation in regard to the Jordan River. The agreements on the rivers Meuse and Scheldt, signed in 1994, call for integrated management of the drainage area of the two rivers and agree on the need for measures of management and cooperation in regard to the sediments in the bed of the rivers. The agreements create an international commission to facilitate international cooperation.

The Convention on Co-operation for the Protection and Sustainable Use of the Danube River (Sofia, June 29, 1994) establishes an International Commission to coordinate consultation and joint activities for the sustainable and equitable management of surface and ground waters in the Danube catchment area. It looks to joint or harmonized programmes in part because its aim is regional and includes the reduction of the pollution loads of the Black Sea from sources in the catchment area. According to Article 4a, the States Parties should engage in consultations and joint activities in the framework of the International Commission. Other provisions call for harmonized domestic regulations for emission limits and standards (Article 7(5)(a)), harmonized monitoring and assessment methods (Article 9(1)), joint monitoring systems and programmes (Article 9), joint research ( Article 15), and joint warning systems (Article 16).

1.2 Transboundary protected areas and landscapes

Transboundary protected areas are being created on a bilateral or even multilateral basis. Recently, the governments of Argentina, Paraguay, and Brazil agreed to link state and private reserves in the Parana jungle region, thus creating a green corridor. Since 1972, the Gran Paradiso National Park in the Italian Alps has been paired with the Vanoise National Park in France, nearly tripling the protected area and providing year-round protection to the ibex. On the regional level, the Waddenzee National Park covers all the natural range of seals along the tidal flats of Denmark, Germany, and the Netherlands. In 1987, the three coastal States entered into an administrative agreement on a common secretariat to set out their duties to cooperate in research and management of the Waddenzee ecosystem as a whole. Similarly, Spain and France coordinate signposts, visitor centres, and tourist information for the French Pyrenees Occidentales National Park and the Spanish Ordesa National Park.

On November 30, 1999, Kenya, Tanzania, and Uganda signed in Arusha the Treaty for the Establishment of the East African Community. Chapter 19 of the treaty provides for cooperation in environment and natural resources management providing, in this framework inter alia, for irrigation and water catchment management, food security, and wildlife management (Articles 109, 110, and 116). It also advocates the integration of environmental management and conservation measures in all developmental activities such as trade, transport, agriculture, industrial development, mining, and tourism in the community (Article112, 1(e)).

The Council of Europe member States adopted the European Landscape Convention on October 20, 2000, with the objective of promoting landscape protection, management, and planning and to organize European cooperation on landscape issues. ‘Landscape’ is defined in the convention as an area, as perceived by people, whose character is the result of the action and interaction of natural and/or human factors. Landscape protection means action to conserve and maintain the significant or characteristic features of a landscape justified by its heritage value derived from its natural configuration and/or from human activity. These definitions place the treaty fully in the approach of integrated protection, reinforced by Article 2, which provides an extensive scope of application, including the entire territory – land, inland waters, and marine areas – of the Parties, and which covers natural, rural, urban, and peri-urban areas.

The general measures Parties should take include recognition of landscapes in law as an essential component of peoples' surroundings, an expression of the diversity of their shared cultural and natural heritage, and a foundation of their identity. This formulation indicates an understanding that humans throughout the world have altered the natural environment in diverse ways that today are part of the cultural identity of the group. This is expressed in the preamble, which notes that developments in agriculture, forestry, industrial and mineral production techniques, and the regional planning, town planning, transport, infrastructure, tourism, and recreation sectors and, at a more general level, changes in the world economy are in many cases accelerating the transformation of landscapes.

Specific obligations include identifying, assessing, and developing quality objectives for landscapes, with public participation. There should also be education and awareness raising of the general public. Article 9 calls on Parties to encourage transfrontier cooperation on local and regional levels and, whenever necessary, to prepare and implement joint landscape programmes.

1.3 Ecosystem protection and management

A holistic approach has come to be particularly important in protecting large transboundary ecosystems: the polar regions, mountains, and marine ecosystems.

1.3.1 The polar regions

The foundations of the Antarctica Treaty System emerged from the International Geophysical Year 1957–1958, proclaimed by the International Council of Scientific Unions, a nongovernmental organization supporting open scientific research. As discussed by Lyn Goldsworthy and Alan Hemmings in this volume, the 1959 Antarctic Treaty, concluded outside the auspices of the United Nations, demilitarized the continent and established that it be set aside for peaceful purposes in the interest of all humanity. The treaty guarantees freedom of scientific investigation and promotes the exchange of scientific information. State compliance with treaty obligations is ensured through a system of mutual inspections. The Antarctic Treaty Parties are also, according to Article X, to ‘exert appropriate efforts consistent with the Charter of the United Nations, to the end that no one engages in any activity in Antarctica contrary to the principles or purposes of the ...Treaty’. The language of Article X has given rise to many debates about whether it is intended to ensure that the activities of non-Parties conform to the treaty within Antarctica and its surrounding waters.9 Article IX foresees regular meetings of the Contracting Parties10 who are given authority to adopt measures regarding, inter alia, the preservation and conservation of living resources in Antarctica. Thus although the word environment does not appear in the treaty, there is a juridical base for considering and acting on environmental issues.

As Goldsworthy and Hemmings describe, the Antarctic Treaty has been progressively complemented by conservation measures and by two conventions, one adopted June 1, 1972, on the Conservation of Antarctic Seals and the second adopted May 20, 1980, on the Conservation of Antarctic Marine Living Resources (CCAMLR) in the area. CCAMLR is one of the first international agreements to adopt an ecosystem approach because it considers the interrelationship between all species and their particular physical environment. Its coverage is uniquely based upon a biological boundary, because it extends to ocean waters that are south of the ‘Antarctic convergence’, the cold waters favourable to nutrients and phytoplankton growth and to the proliferation of krill, one of the bases of the marine food chain. CCAMLR envisages the creation of a system to observe and supervise compliance with the treaty, including procedures relating to on-site visits to and inspections of ships operating within the treaty area. These inspections are undertaken by observers and inspectors designated by members of an international commission established by the convention.11 The major problem has been unreported and illegal catches, most of them made by non-Parties to the agreement.12 In order to strengthen its effectiveness, the CCAMLR Commission created a documentation scheme13 in 1999 and a monitoring system at the end of 2000.

In 1991, the Parties to the Antarctic Treaty negotiated a Protocol on Environmental Protection to the Antarctic Treaty that includes principles and rules concerning all activities in the Antarctic Treaty area. The Madrid Protocol designates Antarctica as ‘a natural reserve, devoted to peace and science’. It invests the Antarctic Treaty System Consultative Meetings with the task of defining the general policy for the comprehensive protection of the Antarctic environment and creates a Committee for Environmental Protection to assist it in this task. The Committee provides advice and formulates recommendations to the Parties in connection with the implementation of the Protocol. In particular, it provides advice on the effectiveness of implementation measures, on the state of the Antarctic environment, and on the need for scientific research and procedures for situations requiring urgent action. The treaty foresees opening all areas of Antarctica, including stations, installations and equipment, and all ships and aircraft within this area, to inspection by observers designated by the Consultative Parties. The Committee for Environmental Protection provides advice on inspection measures, including formats for inspection reports and checklists for the conduct of inspections. The result has been the development of specific area management and protection, as well as marine protected areas. As the authors of the chapter indicate, however, there remain many issues and needs to develop effective environmental protection in the Antarctic Treaty area.

At the northern extreme of Earth, eight Arctic countries adopted in 1991 a detailed instrument on environmental protection. Called the Arctic Environmental Protection Strategy, it is based on the principle that management, planning, and development activities shall provide for the conservation, sustainable use, and protection of Arctic ecosystems and natural resources for the benefit and enjoyment of present and future generations, including indigenous peoples. Use and management of natural resources is based on an approach that considers the value and interdependent nature of ecosystem components. Management, planning, and development activities that may significantly affect the Arctic ecosystems must be based on informed assessments of their impact, including cumulative impact, on the Arctic environment; provide for the maintenance of the region's ecological system and biodiversity; respect the Arctic's significance for and influence on the global climate; be compatible with the sustainable use of Arctic ecosystems; take into account the results of scientific investigations and the traditional knowledge of indigenous peoples; and develop a network of protected areas. The Arctic Strategy identified six specific pollution issues that require attention: persistent organic contaminants, oil pollution, heavy metals, noise, radioactivity, and acidification. Unusually, disturbance from noise also is taken into account. The Strategy identified existing international mechanisms and proposed actions for each identified nuisance. Separate chapters relate to the protection of the Arctic marine environment, to emergency prevention, preparedness, and response, and to the conservation of Arctic fauna and flora.

A 1996 declaration, also a legally nonbinding text, created the Arctic Council as a multilateral forum in order to serve as a permanent high-level intergovernmental framework in which the eight Arctic nations can oversee existing Arctic multilateral activities as well as develop new initiatives. In addition to the eight member States, three organizations representing the majority of indigenous peoples in the circumpolar Arctic are Permanent Participants in the Council, which meets on a biennial basis. The Arctic Council oversees and coordinates programmes originally established under different instruments: the Arctic Environmental Protection Strategy; the Arctic Monitoring and Assessment Programme; the Conservation of Arctic Flora and Fauna; the Protection of the Arctic Marine Environment; and Emergency Prevention, Preparedness, and Response. Other developments include the adoption of an International Code of Safety for Ships in Polar Waters and a Circumpolar Protected Areas network.

1.3.2 Mountain ecosystems

Mountains and uplands constitute about half of the terrestrial landmass of Earth and exist in over three-quarters of the world's countries. Mountain areas contain all the environmental milieu and human activities that have been part of international environmental regulation. They are places of unique and rich biodiversity, cultural diversity within largely traditional lifestyles, fresh water, pristine landscapes, tourism (eco- and industrial), and forest and mineral resources. They are also areas of poverty, erosion, natural disasters, desertification, and industrial development. They have a significant impact on other ecosystems and areas, being important water towers and sensitive indicators of global climatic and environmental change. Some of the activities most destructive to mountain areas, such as extractive mining and large-scale dams, have few or no international norms governing them.

No treaty for mountain areas exists at the global level; only Chapter 13 of Agenda 21 offers a blueprint for mountain resources. Chapter 13 – together with Commission on Sustainable Development progress reports, ECOSOC resolution 1997/45, and a 1997 FAO report on Chapter 13 – identifies the importance of law in the promotion of mountain conservation and development.14 A study by the Mountain Institute found that legal, regulatory, and enforcement structures are perhaps the most important contributing factors to promoting conservation and sustainable development, particularly when using the principle of subsidiarity to enhance local participation.15

The Convention Concerning the Protection of the World Cultural and Natural Heritage (of November 23, 1972) has more than 40 mountain areas around the world on the World Heritage list, including Virunga National Park (Democratic Republic of the Congo), Mount Kenya, Simen National Park (Ethiopia), Prinin National Park (Bulgaria), and Yosemite National Park (United States). In New Zealand, the sacred peaks of Tongariro National Park became the first national park to be created from a gift of land by an indigenous people and a World Heritage site in 1992, the first to be granted that status on both landscape and cultural grounds. Listing increases international recognition for the importance of the sites, but protection measures are largely left to national authorities.

The treaty system established for the protection of the Alps is the most extensive and explicit corpus concerning mountain areas. It aims at protecting one of the largest continuous and relatively unspoilt natural regions in Europe. A Convention Concerning the Protection of the Alps adopted on November 7, 1991, by seven countries of the region and the European Union16 proclaimed a set of principles addressing virtually every aspect of human activities that produce direct or indirect impacts on the mountain environment. The convention is a framework treaty that lists the main fields where specific protocols are to be drafted. It also establishes the foundations of legal, scientific, economic, and technical cooperation and creates a Conference of Contracting Parties, called the Alpine Conference, charged with elaborating the protocols. The Conference also has established a Compliance Mechanism providing for reporting procedures.

The first protocol, adopted in 1994, aims to implement the Alpine Convention in the Field of Town and Country Planning and Sustainable Development.17 A second instrument, the Protocol for the Implementation of the Alpine Convention in the Field of Mountain Agriculture,18 insists on the use of agricultural methods of production that are respectful of nature and environment. It also advocates the integration of agricultural considerations into other policies and has a particular importance for land conservation and management. The aim of the Protocol on Nature Protection and Landscape Conservation19 is not only to protect but also to manage and, if necessary, restore landscapes and nature in the Alpine region. It recommends cooperation – in particular, transboundary cooperation – in the preparation of inventories and the creation and the monitoring of protected areas. Here again, local communities should participate in the action. After this first series of protocols, the Alpine States adopted a further instrument in 1996, related to mountain forests.20 It insists on the main functions of the forests and on protecting them as well as urban areas and agricultural land, and on maintaining the productivity of forests and their social and ecological functions.

On October 16, 1998, Parties to the Alpine convention adopted three more protocols. The first of these is on the protection of soils.21 The Protocol Concerning Energy22 invites the Parties to harmonize their plans related to energy with their general management scheme for the Alpine region; to optimize energy production, transport, and distribution taking into account the needs of environmental protection; and to limit the impact of the uses of energy on the environment, including that of negative effects on the landscapes. The protocol also advocates energy conservation and the use of renewable sources of energy. Parties shall exchange information on the use and surveillance of nuclear energy sources. All new projects related to energy and all modification of existing installations should be submitted to an environmental impact assessment. The third protocol, adopted on the same day,23 aims to ensure sustainable development of the Alpine region through tourism that respects the environment. The influx of tourists should be controlled within the natural limits of the development of the region. This principle should be applied to different aspects of tourism: housing, transport, sports, use of aircraft, coordination of the dates of vacation, cooperation with agriculture, forestry, and local handcraft. Quiet areas should be created, and the use of ski lifts and of ski slopes should be in conformity with environmental requirements.

The last two Protocols were adopted on October 31, 2000. The objective of the first, related to transport,24 is to adopt a sustainable policy in this field by reducing nuisances and risks, avoiding or minimizing danger for biodiversity, and using means of transport that respect as much as possible the environment and natural resources. Such objectives should also be taken into account in other policies. As with all the protocols, participation of the local populations is encouraged. The final protocol concerns dispute settlement25 and aims to reach such settlement by consultation and by arbitration.

In another region, the Framework Convention on the Protection and Sustainable Development of the Carpathians was adopted in Kiev on May 23, 2003, by the fifth ministerial conference ‘Environment for Europe’ and signed by Hungary, Romania, Serbia and Montenegro, Slovakia, and Ukraine. It follows the model of the Alpine conventional system and includes all aspects of protecting the mountain environment. Detailed provisions concern the conservation, sustainable use, and restoration of biological and landscape diversity including the protection of endangered species, endemic species, and large carnivores. It also aims at preventing the introduction of alien invasive species and the release of genetically modified organisms threatening ecosystems, habitats, or species and their control or eradication. A critically important Article 6 invites States Parties to ensure sustainable and integrated water/river management, including land-use planning. It also calls on them to adopt policies aimed at conserving natural watercourses, springs, lakes, and groundwater resources, recognizing the importance of pollution and flood management, prevention, and control. States Parties should also preserve and protect wetlands and wetland ecosystems. An early warning system for transboundary impacts on the water regime or flooding and accidental water pollution should be further developed.

Other provisions concern an integrated approach to land resource management, spatial planning, sustainable agriculture and forestry, sustainable transport and infrastructure, sustainable tourism, cultural heritage, and traditional knowledge. The Parties shall apply, where necessary, risk assessments and environmental impact assessments and shall consult on projects of transboundary character. Awareness raising, education, and public information and participation are also imposed by this convention.26 All the obligations of the convention are to be applied on the basis of general principles listed in Article 2(2): precaution and prevention, polluter pays, public participation and stakeholder involvement, transboundary cooperation, integrated planning and management of land and water resources, a programmatic approach, and the ecosystem approach.

1.3.3 Coastal and marine ecosystems

Efforts to protect the marine environment increasingly take an ecosystem approach, recognizing that coastal areas, mangroves, sea grasses, coral reefs, and other marine living and non-living resources combine to produce complex ecosystems demanding integrated management. There are several definitions of what integrated coastal and marine management means. Agenda 21, Chapter 17, defines integrated coastal management as a system that: (a) provides for an integrated policy and decision making process, including all involved sectors, to promote compatibility and a balance of uses; (b) identifies existing and projected uses of coastal areas and their interactions; (c) concentrates on well-defined issues concerning coastal management; (d) applies preventive and precautionary approaches in project planning and implementation, including prior assessment and systematic observation of the impacts of major projects; (e) promotes the development and application of methods, such as national resource and environmental accounting, that reflect changes in value resulting from uses of coastal and marine areas, including pollution, marine erosion, loss of resources, and habitat destruction; and (f) provides access, as far as possible, for concerned individuals, groups, and organizations to relevant information and opportunities for consultation and participation in planning and decision making at appropriate levels.

The Ramsar States Parties have adopted principles and guidelines for incorporating wetland issues into Integrated Coastal Zone Management (ICZM).27 According to Appendix I of Recommendation VIII.4, integrated coastal zone management is a mechanism for bringing together the multiplicity of users, stakeholders, and decision makers in the coastal zone in order to secure more effective ecosystem management while achieving economic development and equity within and between generations through the application of sustainability principles. This, like most other definitions, recognizes that ICZM is a continuous, proactive, adaptive process of resource management for sustainable development of coastal zones. Its goals must be achieved within the constraints of physical, social, economic, and envirnmental conditions.

Integrated management generally serves as and aims to be a guide on uses in order to avoid exceeding the carrying capacity of the resource base; respect natural dynamic processes; to reduce risks to valuable resources; to ensure ecosystem biodiversity; to encourage complementary activities; to ensure that environmental, social, and economic objectives are achieved at an acceptable cost; to protect traditional uses and rights and equitable access to resources; and to resolve sectoral issues and conflicts. All of these goals require the full participation of local communities based upon a ‘bottom-up’ approach.

The Jakarta Mandate on Marine and Coastal Biological Diversity adopted by the second Conference of the Parties to the Convention on Biological Diversity in 1995 and supplemented by a programme of work adopted in 199828 also addresses integrated marine and coastal area management, sustainable use of living resources, protected areas, mariculture, and alien species. The Jakarta Mandate looks to coordinate and collaborate with other organizations and experts. It calls integrated marine and coastal area management ‘the most suitable framework’ for addressing human impacts and promoting conservation and sustainable use of biodiversity. The basic principle of the Programme of Work is that ‘ [t]he ecosystem approach should be promoted at global, regional, national and local levels’. In addition, ‘protected areas should be integrated into wider strategies for preventing adverse effects to marine and coastal ecosystems from external activities and take into consideration, inter alia, the provisions of Article 8 of the Convention [on Biological Diversity]’. The precautionary approach should be used as guidance for all activities, with science providing knowledge on key processes and influences in the marine and coastal ecosystems that are critical for the structure, function, and productivity of biological diversity.

Even in the absence of integrated management, marine resources are shared and require regulation. The three studies on regional fisheries contained in this volume illustrate the challenges and some of the successful approaches to achieving sustainable utilization and equitable allocation of such resources. Whether the area under consideration is the North Atlantic, the Western and Central Pacific, or Southwest Africa, the issues are the common ones of achieving regional agreement on basic principles, establishing effective monitoring of compliance, and enforcing regulations, as well as ensuring that vessels originating outside the region do not undermine the agreement reached.

1.4 Common principles and legal issues

An ecosystem approach is defined as the ‘strategy for the integrated management of land, water and living resources that promote conservation and sustainable use in an equitable way’. The concept of adaptive management has become central to this approach to conservation of resources. Decision V/6 of the Convention on Biological Diversity emphasizes the role of adaptive management and stresses the necessity of flexibility of management systems of biological resources. The lack of knowledge about ecosystems requires that ‘management must be adaptive in order to be able to respond to such uncertainties and contain elements of “learning-by-doing” or research feedback’. The decision recognizes the necessity of measures based on the precautionary principle. The latter is described as measures needed ‘even when some cause-and-effect relationships are not yet fully established scientifically’. Monitoring is in fact a key to adaptive management because it helps reduce uncertainties and allows quick response to changes in the ecosystem.

An ecosystem approach to environmental protection still requires incorporation and balance with other societal goals, including economic and social development. The World Summit on Sustainable Development referred to the ‘three pillars’ of sustainable development: economic development, social development, and environmental protection. The participating States called for a collective responsibility to advance and strengthen these three interdependent and mutually reinforcing social goals at local, national, regional, and global levels. The problem remains to determine the bases and procedures for balancing the sometimes competing, although interdependent, aspects.

The developments described here represent the emergence of a holistic approach to environmental protection that corresponds to the nature of the environment but that also poses considerable legal difficulties. Concrete integrated action is effective but more difficult to achieve than the narrower sectoral or source-based approach of prior decades. Many international instruments contain vague directives calling for integrated participatory action, but the provisions lack specificity. This may be partly responsible for the proliferation of ‘case studies’ to illustrate best practices as a starting point for action, such as those contained in this volume.

The studies identify many innovations used to address shared natural resources, many of which were developed in order to encourage the participation of sometimes reluctant States. The use of incentives and the principle of common but differentiated responsibilities, the adoption of nonconfrontational review and compliance mechanisms, and the leadership role of certain States have all be instrumental in concluding agreements on shared resources. In some instances the common goals and interests can be served by the adoption of nonbinding instruments, as the Arctic example shows.

Substantively, the agreements concluded reflect the UNEP principles on shared resources, in that they call for avoiding adverse transboundary environmental impacts, a fundamental principle also contained in Principle 21 of the Stockholm Declaration on the Human Environment and Principle 2 of the Rio Declaration on Environment and Development. Prior notification of plans that would significantly affect the resource, along with information about any emergency, are also now widely accepted principles. Indeed, as Charles Di Leva writes in Chapter 3, the operational guidelines of the World Bank require prior notification of Bank-funded projects to all potentially affected watercourse States, following completion of an environmental impact assessment that includes transboundary effects. The Bank policies generally can be seen to promote the sharing of information among relevant stakeholders. Beyond the legal requirement, many of the chapters that follow emphasize the importance of public participation and stakeholder involvement to the success of any common management programme.

The duty to cooperate and the principle of equitable use of shared resources also seem clearly established in international environmental law. Cooperation can be enhanced through using already existing regional or subregional organizations, as Louis Kotzé describes in his analysis of the Southern African Development Community (SADC). SADC, like many other organizations and States, bases much of its shared management of watercourses on the principle of equitable utilization. The many factors that determine whether a given use is reasonable and equitable are sometime conflicting, but they provide the basis for decision making consistent with another principle, that of prevention of significant harm. It is also worth noting that the principle of equitable utilization could be applied to the atmosphere, where it could have significant consequences in climate change negotiations. Already, the concept that the atmosphere is a shared natural resource has led to an ASEAN Agreement on Transboundary Haze Pollution, analyzed by Koh Kheng-Lian in Chapter 12.

One of the unresolved and most difficult issues that underlies legal developments with respect to shared natural resources is the determination of their legal status. Many States and scholars view transboundary resources as being within the sovereignty of each State, to the extent that the resource is located therein. There have been challenges to this notion for more than two centuries, however, by those who have claimed that no part of a shared resource can belong exclusively to the individual State if the entire resource extends over the territory of several States; instead, the resource must be considered the common property of all. This notion akin to common heritage has been applied thus far only to resources found outside the jurisdiction of any State and not to transboundary resources like international watercourses. It is certainly worth considering the extent to which the concept of a shared resource acts to limit State sovereignty in respect to the resource, even without an agreement between the relevant States. As many of the chapters and the comments here indicate, there are international legal obligations that arise from the fact that a resource is shared, whether or not the term ‘common heritage’ is applied to the resource.

Broader institutional and financial issues are highlighted in many of the case studies, because these factors are as important as political will in achieving agreement and arriving at effective implementation and compliance with agreed obligations. The challenges may be discouraging, but they may also provide opportunities for innovations and comprehensive developments to address the complex political, environmental, and governance issues raised by the need to achieve equitable and sustainable use of shared resources.

1 Ahn Professor of International Law, The George Washington University Law School, Washington, DC.

2 Convention on Migratory Species (1979), Berne Convention on European Wildlife (1979), Birds Convention (1950), EC Council Directive on the Conservation of Wild Birds (1979), Polar Bear Agreement (1973), and the Convention on Biological Diversity (1992).

3 See United Nations Environment Programme (UNEP), Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Nature Resources Shared by Two or More States, Nairobi, May 9, 1978; A. Kiss, Can We Speak of the Protection and Management of Shared Natural Resources? Juridisk Tidskrift 1997–1998, IV 1.

4 A ‘river basin’ is the area that contributes hydrologically to surface and groundwater of a first order stream. The latter discharges into the ocean or a closed lake or inland sea. River basin is thus similar in concept to watershed or catchment area.

5 A. T. Wolf, Conflict and Cooperation Along International Waterways, Water Policy, vol. 1, no. 2 (1998), p. 251. [Link]

6 UNEP, Atlas of International Freshwater Agreements (Nairobi: 2002), p. 3.

7 For example, Agreement on Joint Activities in Addressing the Aral Sea and the Zone around the Sea Crisis, Improving the Environment, and Ensuring the Social and Economic Development of the Aral Sea Region (March 26, 1993); Agreement between the Government of the Republic of Kazakhstan, the Government of the Kyrgyz Republic, and the Government of the Republic of Uzbekistan on Cooperation in the Area of the Environment and Rational Nature Use (March 17, 1998); Agreement on the Use of Water and Energy Resources of the Sry Darya Basin (March 17, 1998); and Protocol to the Agreement on the Use of Water and Energy Resources of the Syr Darya Basin (May 7, 1999).

8 UNEP, supra note 6, p. 7.

9 The provisions of the Antarctic Treaty and the Environmental Protocol apply to the area south of 60 degrees South Latitude, including all ice shelves. Article VI.

10 The Parties to the treaty do not all have the same rights of participation. Fully participating states, the Antarctic Treaty Consultative Parties (ATCP), are those that demonstrate their interest in Antarctica ‘by conducting substantial scientific research activity there, such as the establishment of a scientific station orthe dispatch of a scientific expedition’. The ATCP meet in the Consultative Meeting.

11 May 20, 1980, Art. 24, U.K.T.S. 48 (1982), Cmd. 8714, T.I.A.S. 10240, A.T.S. 3 (1982), 19 I.L.M. 837 (1980).

12 Greenpeace estimates that over half of the Patagonian toothfish catch is taken by illegal fishing conducted from countries that are not party to the Convention on the Conservation of Antarctic Marine Living Resources. See www.greenpeace.org

13 Although the Catch Documentation Scheme is intended to ensure that all toothfish are legally procured, in practice the captain of a vessel need only state that the fish were caught outside the convention area to circumvent the restrictions.

14 FAO, Task Manager's Report on Chapter 13, Agenda 21, Report of the Secretary-General, E/CN.17/1997/2/Add.12, 22 January 1997. The report refers to the need for new or reinforced legal mechanisms (charters, conventions, national legislation, etc.) to protect fragile mountain ecosystems and promote sustainable development in mountain regions.

15 Lynelle Preston (ed.), Investing in Mountains: Innovative Practices and Promising Examples for Financing Conservation and Sustainable Development (Washington, DC: The Mountain Institute, 1997).

16 Salzburg, November 7, 1991, EMuT 991:83.

17 Chambéry, December 20, 1994, EMuT 991:83/B.

18 Chambéry, December 20, 1994, EMuT 991:83/C.

19 Chambéry, December 20, 1994, EmuT 991:83/D.

20 Protocol for the Implementation of the Alpine Convention in the Field of Mountain Forests, Brdo, February 27, 1996, EMuT 991:83/E.

21 Protocol for the Implementation of the Alpine Convention in the Field of Soil Protection, Bled, October 16, 1998, EMuT 991:83/F.

22 Bled, October 16, 1998, EMuT 991:83/G.

23 Protocol for the Implementation of the Alpine Convention in the Field of Tourism, October 16, 1998, EMuT, 991:83/H.

24 Protocol for the Implementation of the Alpine Convention of 1991 in the Field of Transport, Lausanne, October 31, 2000, EMuT, 991:83/I..

25 Lausanne, October 31, 2000, EMuT, 991:83/J.

26 Parties to this agreement are also Parties to the June 24, 1998, Aarhus Convention on Information, Participation, and Access to Remedies in Environmental Matters.

27 Resolution VIII.4, Principles and Guidelines for Incorporating Wetland Issues into Integrated Coastal Zone Management, 8th Meeting of the Conference of the Parties, Valencia, Spain, 18–26 November 2002.

28 Decision IV/5.

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