Breakfast session 4:
Resource - Related Territorial Disputes
November 16, 2014
University of Calgary
University of Toronto
University of Bern
2017 JD/MA Candidate
The first speaker, Nigel Bankes, presented on the Canada/France framework agreement for transboundary hydrocarbon resources. Bankes explained that there are three dispute resolution processes for transboundary hydrocarbon resource agreements. First, the Technical Working Group (TWG) allows the parties to discuss the technical issues of the agreement. The TWG is a facilitating mechanism and the results of these discussions are not binding. Second, the expert procedure is an opportunity to discuss more substantive issues and the decisions that are made are compulsory. Finally, the parties can resort to arbitration. This is not solely a “dispute resolution” mechanism because it is based on the broad conception of arbitration. In addition to resolving any existing disputes, it is also an opportunity to further specify the terms of the agreement. Despite the fact that this framework is geared towards transboundary hydrocarbon resources, Bankes notes that this model has a broad geographical representation and it would be possible to take the best practices from these agreements and apply them to other issues.
The second speaker, Tamar Meshel, presented on the role of international water law in the resolution of transboundary freshwater disputes (TFDs). TFDs are disputes that occur between two or more states, including non-contiguous states, concerning a shared surface of freshwater resources. Quantitative freshwater issues include ownership, quantity and rights of use. Meshel argued that there are currently two legal obstacles to the effective resolution of TFDs: (a) lack of a clear conceptual framework; and (b) lack of a clear practical formula for the application of the core substantive principles of international water law. These two core principles are (i) equitable and reasonable utilization and (ii) no significant harm. The relationship between these principles is controversial because they are vague and can be contradictory. In order to clarify the interrelationship between these principles, Meshel proposes the use of the “regional common concern” principle as a conceptual framework and “equitable priority” as a practical formula. According to her, this framework would approach this issue in an integrative manner and this formula would create a balance between the two principles.
The third speaker, Jonas Attenhofer, based his presentation on article 73 of the Charter of the United Nations. Attenhofer argued that the potential of article 73 is currently being overlooked. According to him, article 73 is triggered in situations of intervention and occupation. In such cases, this article specifies the existing responsibilities and the new responsibilities of the intervening state. For example, states must respect the culture of the peoples concerned and must promote constructive measures of development. States cannot argue that article 73 does not apply to them because they have ratified the Charter. That being said, the advantage of this perspective is that there is no need to create new international laws or principles. Moreover, the application of article 73 would ensure that international interventions are more honest because the cost would be higher for intervening states.