Recueil des cours, Collected Courses, Tome 426

Series: 

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.
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.
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 Tadič 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