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Editorial, 'On Foreign Direct Investment', in LAW ANIMATED WORLD, Vol. 7, Part 2, No. 23, 15 December 2011 issue

ON FOREIGN DIRECT INVESTMENT

Manmohan Singh’s Government tripped but in the last minute saved itself from a fall by coming to a temporary truce with its opponents in and out of government on its recently announced measure to allow 51% equity in retail sector to Foreign Direct Investment. The need and relevance of FDI in the economy itself is not seriously questioned nowadays. Only miniscule numbers of some extreme left and right political circles stubbornly oppose any sort of FDI as a covert route to neo-colonialism but otherwise public consensus favors it in the present days of capitalist globalization as also human socialization through social networking, etc. It is generally accepted that FDI can give the much-needed boost to the economy of a country provided its sovereignty and democratic control are jealously cherished. USA itself stands out as the country with the maximum FDI in the world ($228 billion) giving big spurt to its economy, and China, our large neighbor, has speedily taken the second place ($185 billion in 2010). The FDI in our country has grown from less than $1 billion in 1990 to some $36 billion [FDI stock 2009-10] and so far it has not made any serious dent in our sovereignty/political independence, nor did it cause any grave socio-economic adversities. I very much remember a similar outburst of opposition a decade or two back to the entry of the corporate sector in India into retail trade with all sorts of apprehensions about great loss to, virtual wipe out of, small retailers but nothing of the sort happened. Also in China, which allows 100% FDI in both single/multi brand retailing, even the indigenous retailers are reported to have grown by 30%. Notably, several farmers’ organizations too, in addition to IndiaInc, have come in support of the FDI in retail sector. So it is a question more of allaying the fears and apprehensions in the minds of the people and to begin in the right way – I mean, to start with initiative to the states first, instead of announcing it as a centralized national policy. Then I think Modi’s Gujarat, despite BJP’s current opposition for temporary political gains, will be a frontrunner in inviting FDI into its retail sector and gradually, by phases, the entire country will opt for and benefit from it. §§§

LAW ANIMATED WORLD, November 15, 2010 October Revolution Special Issue, Title photos

LAW ANIMATED WORLD, November 15-30 October Revolution Special Issue, Editorial, FIRST IN MANY RESPECTS

FIRST IN MANY RESPECTS

The Great October Socialist Revolution certainly was – especially in guiding the oppressed people of the world in the glorious struggles to end the ‘exploitation of man by man’. Whatever be the changed circumstances since the collapse of the state socialisms created in its wake, and however much may its detractors gloat about the ‘end of history’, ‘victory of the free market’ and ‘march of capitalist globalization’ in the world today, the fact remains that socialism, a scare-word in the beginning of the 20^th century, has now become an acceptable honorific for a desirable alternative societal system – may be an utopia, but one to dream of and strive for. The daring and dashing Bolsheviks under Lenin’s leadership as if stormed the ‘heavens’ to bring the heat and light of socio-economic and political justice to people pining in the darkness of poverty and deprivation. À la Pablo Neruda – “They said ‘comrade’ to the world – They made the carpenter king – No camel shall pass through this needle’s eye – They cleansed the villages – Divided the land – Elevated the serf – Eliminated the beggar – Annihilated the cruel – Brought light into the deep night.” True, the negative aspects of the course and consequences of this revolution cannot also be overlooked but can anyone disparage its transformation of a backward imperialist country groaning under Czarist autocracy, feudal servitude and capitalist oppression into a highly developed military industrial complex - into one of the two superpowers in the world. Especially its achievements in education, public health, space sciences and military-industrial technology, etc. can never be forgotten. And “the first satellite, the first probe into the Moon, the first man in space, the first woman, …” (Jed Mercurio: ‘Ascent’) etc. – so many firsts stand to its credit; above all, how can we forget the immortal Battle of Stalingrad and the death-defying fight against fascim leading to the victory of democratic forces and eventual forging of the United Nations. The Revolution and its creatures served as an immense bulwark for the freedom and dignity of the oppressed third world peoples in their fight for liberation. True, now in Russia itself things are turned upside down, with capitalism restored, the notorious Czar Nicholas rehabilitated, etc., but that in no way deters us progressive democrats nostalgically acknowledging in the immortal words of Nerurda, “Soviet Union, if we could gather up all the blood spilled in your struggles, all you gave as a mother to the world so that freedom, dying, might live, we would have a new ocean larger than any other / deeper than any other / vibrant as all rivers / active as the fire of Araucanian volcanoes…” §§§

LAW ANIMATED WORLD, November 15-30 October Revolution Special Issue, Title photos

Prof RVR Chandrasekhara Rao, one of our editorial advisers

Professor RVR Chandrasekhara Rao, a versatile intellectual, educationist and writer, who held prestigious academic posts such as the Vice-Chancellorship of the AP (Dr. Ambedkar) Open University, is one of our eminent editorial advisers and I am pleased to post some of his photographs in our blog now - IMS, Editor, LAW.

Prof. RVR Chandrasekhara Rao (1)

Prof. RVR Chandrasekhara Rao (2)

Prof. RVR Chandrasekhara Rao with his wife

LFTR in 5 Minutes - THORIUM REMIX 2011

Editorial, "YOU ARE THE 99%, OCCUPY THE WORLD!," in the 31 October 2011 (Vol. 7, Pt. 2, No. 20) issue of LAW ANIMATED WORLD

You are the 99%, Occupy the World!

The message is loud, clear and bold. People are really fed up with the things as they are now, making their lives miserable. While 1% of the world population enjoys nearly half the cake, the lower 50-60% does not have even 10% of the bread to make both ends meet. It is the capitalist Kleptocracy of the modern times that is ruining the fortunes of the people and the environment of our planet. It is heartening to see the American people in large numbers taking to streets under the inspiration of the ‘Arab Spring’, claiming their inalienable rights on the resources of the society. Calling 2011 the year of revolutions, inspired by the saying ‘No Army can stop an Idea, whose Time has come’ (Victor Hugo), they occupy the Wall Street and several squares in other cities too. The movement has now spread to several European cities also, though despite Anna Hazare’s anti-corruption movement that raged here in India, perhaps the ‘world’s largest kleptocracy’, Dalal Street is somehow still safe from the ire of the demonstrators. The organizers pithily claim: “Occupy Wall Street is leaderless resistance movement with people of many colors, genders and political persuasions. The one thing we all have in common is that ‘We Are The 99%’ that will no longer tolerate the greed and corruption of the 1%. We are using the revolutionary Arab Spring tactic to achieve our ends and encourage the use of nonviolence to maximize the safety of all participants. This OWS movement empowers real people to create real change from the bottom up. We want to see a general assembly in every backyard, on every street corner because we don't need Wall Street and we don't need politicians to build a better society.” Radical intellectuals like Noam Chomsky and John Bellamy Foster have declared their solidarity, with the former strongly condemning the ‘gangsterism’ of the Wall Street “that has set in motion a vicious cycle that has concentrated immense wealth, and with it political power, in a tiny sector of the population, a fraction of 1%, while the rest increasingly become … "a precariat" -- seeking to survive in a precarious existence.” And he commends: “The courageous and honorable protests underway in Wall Street should serve to bring this calamity to public attention, and to lead to dedicated efforts to overcome it and set the society on a more healthy course” – We can’t agree more. §§§

Message To Humanity: The Time is Now (Remastered)

Editorial, "RIGHTS END WHERE HARM BEGINS," in the 15 October 2011 (Vol. 7, Pt. 2, No. 19) issue of LAW ANIMATED WORLD

RIGHTS END WHERE HARM BEGINS

Truly, as attributed to the ‘Great Dissenter’ Justice Oliver Wendell Holmes, Jr., “the right to swing my fist ends where the other man’s nose begins.” Holmes was indeed greatly influenced by Zechariah Chafee, who in his “Freedom of Speech in war time” (1919) had earlier clarified: “It is useless to define free speech by talk about rights. The agitator asserts his constitutional right to speak, the government asserts its constitutional right to wage war. The result is a deadlock. Each side takes the position of the man who was arrested for swinging his arms and hitting another in the nose, and asked the judge if he did not have a right to swing his arms in a free country. ‘Your right to swing your arms ends just where the other man’s nose begins’. To find the boundary line of any right, we must get behind rules of law to human facts…” Also, “Liberty consists in being able to do everything which does not harm others” (Declaration of Rights of Man, 1789). And even when Marx was criticizing it as a bourgeois negative right, he was not opting for absolute, uncontrollable rights but only indicating the greater importance of social obligations. So, beyond that ‘Lakshman Rekha’ we think freedom degenerates into license and calls for collective/state action to curb it. Of course when dealing with sensitive, sentimental mass movements the State and other groups have, no doubt, to mind caution and wisdom too, but that does not mean inaction and surrender to anarchy. It only indicates the need for all necessary measures to be taken step by step – sama, dana, bheda, dandopaya – force being the last resort. But force cannot be abjured altogether as there is also much worth in the axiom: “Dandam Dasagunam Bhavet.” We are very much concerned, and sad, at the various undesirable social conflicts raging in our country adversely affecting the basic rights of various sections of the society, and at times even amounting to the stupidity of “lifting the rock, only to drop it on one’s own feet.” Strikes, Bandhs, Hartals, etc. when conducted by the people voluntarily for just causes, and with due regard to the emergent needs, and also with due respect to the rights of dissenters to freely express their opinions, may be legitimate but not so are most of such phenomena in our country which are usually nothing but the result of ‘stone pelting by a few intimidating groups’. §§§

Editorial, "A DECADE OF TERROR," in the 30 September 2011 (Vol. 7, Pt. 2, No. 18) issue of LAW ANIMATED WORLD

A DECADE OF TERROR

To say so may not be an inappropriate characterization of the ten years in world history since the 9/11 terrorist mayhem, perhaps the most gruesome one since the nuclear holocaust at Hiroshima/Nagasaki, at any rate the most macabre attack by a private international terrorist outfit to date. All Americans were shell-shocked, the world community was awe-struck and almost all the heads of states condemned it except perhaps Saddam Hussein of Iraq and thousands of Palestinians who danced in the streets to celebrate the attacks [news of such celebrations by fundamentalists reported also at many other places the world over]. The then American President Bush swiftly vowed revenge and designed plans to ‘fight against international terror’, declaring: “Those who are not with us are against us!” And he found solid support from the American masses at the time. What followed we all have witnessed and are still watching – an imperialist over-reaction, massacring the third world people in millions, and bit by bit, in the name of countering terrorism and decimating Al-Qaeda and other fundamentalist outfits which, curiously, owed their origin to the scheming of the CIA in their covert war in Afghanistan against the Soviet invasion. All the bombings and killings in Iraq alone are said to have exceeded even the World War II records for any single state. And in Afghanistan, though the US, allying with Pakistan, a rogue state, could overthrow the Taliban government, yet after ten years the Americans are far from totally overcoming the Talibans. Pakistan has become a terror hotbed – both a haven and a victim for all kinds of gory terrorists and though Obama succeeded in killing Bin Laden, his ghost still haunts America and the West as also India and other terrorist-stricken countries. All this indicates that mere state/international agencies’ counter-terror will not do to curb the menace of sundry varieties of terrorism all over the world but it needs the abolition of the basic inequities in the world socio-economic order and the end of all imperialist aggressions and neo-colonial collaborations for that purpose, as also to usher in human welfare oriented social systems all the world over §§§

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Editorial, 'SHUN DIVISIVE POLITICS', in LAW ANIMATED WORLD, 15 September 2011 (Vol. 7, Part 2, No. 17) issue

SHUN DIVISIVE POLITICS

of any sort – of caste, community, religion, region or of bigoted laws – or else, this country will certainly go to the dogs. Already such politics in the name of religion have resulted in the vivisection of the country and gory, tragic partition holocaust. Now the canny vote bank politics under the garb of ‘good intentions’ being pursued by the governments at the helm, and pressurized by well-meaning but misguided civil society groups, also indicate the danger of more devastating consequences for the country which is already in an anarchic state due to sundry socio-politico-economic circumstances. The intended ‘Prevention of Communal and Targeted Violence’ Bill with the ostensive good end of helping victimized minorities and distressed communities is in effect a grossly discriminatory piece of law in which the very essence of democracy is being subverted. Apart from the threat to existing quasi-federal setup it poses, the rule, or the say, of the majority will be so perverted to ensue in the harassment and persecution of the majority in the name of protection of minorities if this bill is to be by any chance accepted and passed by a gullible parliament. To quote Lenin: ‘good intentions could pave the way to hell even’. That aggressive minority communalism in collusion with crafty foreign imperialism was the chief cause for our country’s partition is widely accepted. And the history of the various communal riots in these sixty and more years of independence also does not rule out the possibility, at least at times, of the aggressiveness of a minority/deprived community, being the main cause for the mischief. As such, to further arbitrarily divide the society into majority and minority groups and thus cause irreversible damage to the fabric of secularism and socialist-oriented development patterns in the country is not at all warranted. ‘Too many laws mean too little justice’ is a wise, weighty axiom and the existing laws, if enforced in all sincerity and honesty, are quite capable of tackling the menace of any communal calamities. There is absolutely no rhyme or reason to make any special law, especially the sort of such discriminatory legislation, in this regard §§§

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HAZAR RAHEIN MUR KAY DEKHEIN

Editorial, "ON DEATH PENALTY", in LAW ANIMATED WORLD, Vol. 7, Part 2, No. 16, 31 August 2011 issue

ON DEATH PENALTY

Of course there are unending arguments pro and con the wisdom and need of retention of death penalty in a civilized society. Though we have not discussed the issue in the columns of this journal so far, as far back as on 30 September 2006 (LAW, 2:18), we counseled moderation in regard to the capital punishment to Afzal Guru and pleaded for its commutation on a different ground and in the diverse context of our Indian Sarabjit Singh facing gallows in Pakistan, and suggested that “by statesmanlike conduct of the leaders and civil libertarians of both the countries an amicable settlement be arrived at so that ultimately the sentences on both him and Sarabjit be commuted first and later both of them be exchanged and thus set at liberty.” We stick to it even now but insist that even in the absence of any exchange deal, Afzal Guru’s sentence should be commuted as a gesture of political goodwill towards the Kashmiri Muslims who are almost in one voice demanding the same. It is our conviction that whatever may be the case for retention of death penalty for gory and revolting murders for gain or of sadist orgy, it should never be executed in the case of political ‘criminals’ who stand entirely on a different footing. That the legislative assembly of Tamil Nadu passed an unanimous resolution demanding the commutation of the death sentences on Perarivalan, Murugan and Santhan, the convicts in Rajiv Gandhi assassination case, in the wake of the recent protest agitation involving the self-immolation of a young girl Sengodi for the cause and the equally intense protests by the people and civil society of the Kashmir Valley with even the then Chief Minister of J & K, Ghulam Nabi Azad, pleading for the clemency of Afzal Guru – by the way all of whom are sentenced on the basis of confessions to police officers which are never permissible evidence in the ordinary course of law and mainly on circumstantial evidence that is very doubtful and always wary – show that informed political opinion in our country also shuns capital punishment to political prisoners. So we also ardently demand that the Government of India commute these death sentences without further delay §§§

Editorial, 'INDIA 64' in LAW ANIMATED WORLD, 15 August 2011 issue, Vol. 7, Part 2, No. 15

INDIA 64

has not brought any special cheers to the common man with ever-rising prices, intense deprivations and, above all, the all-enveloping scourge of corruption eating into the very vitals of the society. The Prime Minister has rightly identified the problem of corruption as a major obstacle to the progress of democracy in our country but the caustic criticism of Anna Hazare and umpteen honest and dedicated social activists accuses the very Prime Minister and his government of diluting the fight against corruption by placing a weak and useless Jan Lok Pal bill before the parliament. And they have gone on agitation with Anna Hazare embarking on his indefinite fast. But we have already once pointed out in an editorial that ‘ati sarvatrena varjyat’ and perhaps the Anna team is stretching too far, especially when the bill is in the court of the parliament. Even the Swedish Riksdagens ombudsman (parliamentary ombudsman), a pioneer in this field in the entire world it seems, is strictly limited in jurisdiction to ‘a public authority or an official employed by the civil service or local government’ and specifically excludes ‘the actions of members of the Swedish Riksdag (Parliament), the government or individual members of the cabinet, the Minster of Justice or members of county or municipal councils. Nor do newspapers, radio and television broadcasts, trade unions, banks, insurance companies, doctors in private practice, lawyers et al. come within the ambit of the Ombudsmen’. In contrast, the bill introduced here covers even ministers except the premier and if there are defects, we also say there are, that should be corrected by the force of public protest and through parliament. As such we feel the matters are better left to the Parliament and peaceful protests for now, but what worries us more is the plight of millions of the poor and helpless who don’t even receive the wages of their hard toil properly, or at all, and are grossly neglected by all the wings of the state. The feudal/capitalist crooks, who commit such atrocities, degrading/destroying the lives of the people, are to be promptly jailed and strictly punished. We will be glad only if and when such a stringent law and practice rule the roost in our country §§§

Editorial, 'INDIA'S RICHEST TEMPLE' in LAW ANIMATED WORLD, Vol. 7, Part 2, No. 14 - 31 July 2011 issue

INDIA’S RICHEST TEMPLE

The discovery and inspection ordered by the highest court of our land, in course of the appellate proceedings of a PIL launched by a public spirited advocate, late Sri T.P. Sundararajan, first in the Kerala High Court which directed state take over of the properties of the Sri Ananta Padmanabha Swamy Temple, Tiruvanantapuram, has revealed vast treasures stashed in the underground vaults (Kallaras) of the temple and now it is claimed on the temple website itself that it has become the richest Hindu Temple in India as well as the world, and that “As on 7^th July, 2011, after completing the asset valuation of the 5 secret cellars of the temple the treasure sums to more than Rs. 100,000 crore (» US $22.3 billion) in total, without even calculating the antique value… Earlier Sree Tirumala Venkateswara Temple in Tirupati … was regarded as the richest temple in India.” The Apex Court has further ordered the constitution of a committee with experts to prepare a detailed inventory with specific valuation as also to take any decision to open or not the sixth cellar which is said to be barred by a nagabandham (‘snake-knot’) the opening of which is considered calamitous unless virtuously permitted in course of a daivaprashnam (‘divine questioning’). Though not believing in superstitions, we feel that the sentiments/rituals of the worshippers have also to be catered in some way or the other but all the same that cellar has to be opened in the end and the entire assets of the Deity should be properly guarded and used for societal benefit. Much of the treasure with idols, ornaments, etc. could be shifted to the nearby museum (or a new high security museum could even be built) in the temple premises and thrown open for exhibition to the public at a reasonable fee. Any non-displayable assets could be deposited in banks to gain interest that can be used to finance sundry welfare schemes. Due care should however be taken to make appropriate laws and rules to see that temples of the majority community alone are not indiscriminately targeted for such takeovers but places of worship of any other community would also be likewise affected when their assets exceed a minimum high line to be stipulated by law §§§

Convention on the Law of the Non-navigational Uses of International Watercourses 1997

Convention on the Law of the Non-navigational Uses of

International Watercourses

1997

Adopted by the General Assembly of the United Nations on 21 May 1997. Not yet in force. See General Assembly resolution 51/229, annex, Official Records of the General Assembly, Fifty-first Session, Supplement No. 49 (A/51/49). Copyright © United Nations 2005

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

Adopted by the General Assembly of the United Nations on 21 May 1997

The Parties to the present Convention,

Conscious of the importance of international watercourses and the non-navigational uses thereof in many regions of the world,

Having in mind Article 13, paragraph 1 (a), of the Charter of the United Nations, which provides that the General Assembly shall initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification,

Considering that successful codification and progressive development of rules of international law regarding non-navigational uses of international watercourses would assist in promoting and implementing the purposes and principles set forth in Articles 1 and 2 of the Charter of the United Nations,

Taking into account the problems affecting many international watercourses resulting from, among other things, increasing demands and pollution,

Expressing the conviction that a framework convention will ensure the utilization, development, conservation, management and protection of international watercourses and the promotion of the optimal and sustainable utilization thereof for present and future generations,

Affirming the importance of international cooperation and good-neighbourliness in this field,

Aware of the special situation and needs of developing countries,

Recalling the principles and recommendations adopted by the United Nations Conference on Environment and Development of 1992 in the Rio Declaration and Agenda 21,

Recalling also the existing bilateral and multilateral agreements regarding the non-navigational uses of international watercourses,

Mindful of the valuable contribution of international organizations, both governmental and nongovernmental, to the codification and progressive development of international law in this field,

Appreciative of the work carried out by the International Law Commission on the law of the nonnavigational uses of international watercourses,

Bearing in mind United Nations General Assembly resolution 49/52 of 9 December 1994,

Have agreed as follows:

PART I.

INTRODUCTION

Article 1

Scope of the present Convention

1.The present Convention applies to uses of international watercourses and of their waters for purposes other than navigation and to measures of protection, preservation and management related to the uses of those watercourses and their waters.

2.The uses of international watercourses for navigation is not within the scope of the present Convention except insofar as other uses affect navigation or are affected by navigation.

Article 2

Use of terms

For the purposes of the present Convention:

(a) “Watercourse” means a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus;

(b) “International watercourse” means a watercourse, parts of which are situated in different States;

(c) “Watercourse State” means a State Party to the present Convention in whose territory part of an international watercourse is situated, or a Party that is a regional economic integration organization, in the territory of one or more of whose Member States part of an international watercourse is situated;

(d) “Regional economic integration organization” means an organization constituted by sovereign States of a given region, to which its member States have transferred competence in respect of matters governed by this Convention and which has been duly authorized in accordance with its internal procedures, to sign, ratify, accept, approve or accede to it.

Article 3

Watercourse agreements

1. In the absence of an agreement to the contrary, nothing in the present Convention shall affect the rights or obligations of a watercourse State arising from agreements in force for it on the date on which it became a party to the present Convention.

2.Notwithstanding the provisions of paragraph 1, parties to agreements referred to in paragraph 1 may, where necessary, consider harmonizing such agreements with the basic principles of the present Convention.

3.Watercourse States may enter into one or more agreements, hereinafter referred to as “watercourse agreements”, which apply and adjust the provisions of the present Convention to the characteristics and uses of a particular international watercourse or part thereof.

4.Where a watercourse agreement is concluded between two or more watercourse States, it shall define the waters to which it applies. Such an agreement may be entered into with respect to an entire international watercourse or any part thereof or a particular project, programme or use except insofar as the agreement adversely affects, to a significant extent, the use by one or more other watercourse States of the waters of the watercourse, without their express consent.

5.Where a watercourse State considers that adjustment and application of the provisions of the present Convention is required because of the characteristics and uses of a particular international watercourse, watercourse States shall consult with a view to negotiating in good faith for the purpose of concluding a watercourse agreement or agreements.

6.Where some but not all watercourse States to a particular international watercourse are parties to an agreement, nothing in such agreement shall affect the rights or obligations under the present Convention of watercourse States that are not parties to such an agreement.

Article 4

Parties to watercourse agreements

1.Every watercourse State is entitled to participate in the negotiation of and to become a party to any watercourse agreement that applies to the entire international watercourse, as well as to participate in any relevant consultations.

2.A watercourse State whose use of an international watercourse may be affected to a significant extent by the implementation of a proposed watercourse agreement that applies only to a part of the watercourse or to a particular project, programme or use is entitled to participate in consultations on such an agreement and, where appropriate, in the negotiation thereof in good faith with a view to becoming a party thereto, to the extent that its use is thereby affected.

PART II.

GENERAL PRINCIPLES

Article 5

Equitable and reasonable utilization and participation

1.Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse.

2.Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention.

Article 6

Factors relevant to equitable and reasonable utilization

1.Utilization of an international watercourse in an equitable and reasonable manner within the meaning of article 5 requires taking into account all relevant factors and circumstances, including:

(a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character;

(b) The social and economic needs of the watercourse States concerned;

(c) The population dependent on the watercourse in each watercourse State;

(d) The effects of the use or uses of the watercourses in one watercourse State on other watercourse States;

(e) Existing and potential uses of the watercourse;

(f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect;

(g) The availability of alternatives, of comparable value, to a particular planned or existing use.

2. In the application of article 5 or paragraph 1 of this article, watercourse States concerned shall, when the need arises, enter into consultations in a spirit of cooperation.

3.The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.

Article 7

Obligation not to cause significant harm

1.Watercourse States shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States.

2.Where significant harm nevertheless is caused to another watercourse State, the States whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of articles 5 and 6, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.

Article 8

General obligation to cooperate

1.Watercourse States shall cooperate on the basis of sovereign equality, territorial integrity, mutual benefit and good faith in order to attain optimal utilization and adequate protection of an international watercourse.

2. In determining the manner of such cooperation, watercourse States may consider the establishment of joint mechanisms or commissions, as deemed necessary by them, to facilitate cooperation on relevant measures and procedures in the light of experience gained through cooperation in existing joint mechanisms and commissions in various regions.

Article 9

Regular exchange of data and information

1.Pursuant to article 8, watercourse States shall on a regular basis exchange readily available data and information on the condition of the watercourse, in particular that of a hydrological, meteorological, hydrogeological and ecological nature and related to the water quality as well as related forecasts.

2. If a watercourse State is requested by another watercourse State to provide data or information that is not readily available, it shall employ its best efforts to comply with the request but may condition its compliance upon payment by the requesting State of the reasonable costs of collecting and, where appropriate, processing such data or information.

3.Watercourse States shall employ their best efforts to collect and, where appropriate, to process data and information in a manner which facilitates its utilization by the other watercourse States to which it is communicated.

Article 10

Relationship between different kinds of uses

1. In the absence of agreement or custom to the contrary, no use of an international watercourse enjoys inherent priority over other uses.

2. In the event of a conflict between uses of an international watercourse, it shall be resolved with reference to articles 5 to 7, with special regard being given to the requirements of vital human needs.

PART III.

PLANNED MEASURES

Article 11

Information concerning planned measures

Watercourse States shall exchange information and consult each other and, if necessary, negotiate on the possible effects of planned measures on the condition of an international watercourse.

Article 12

Notification concerning planned measures with possible adverse effects

Before a watercourse State implements or permits the implementation of planned measures which may have a significant adverse effect upon other watercourse States, it shall provide those States with timely notification thereof. Such notification shall be accompanied by available technical data and information, including the results of any environmental impact assessment, in order to enable the notified States to evaluate the possible effects of the planned measures.

Article 13

Period for reply to notification

Unless otherwise agreed:

(a) A watercourse State providing a notification under article 12 shall allow the notified States a period of six months within which to study and evaluate the possible effects of the planned measures and to communicate the findings to it;

(b) This period shall, at the request of a notified State for which the evaluation of the planned measures poses special difficulty, be extended for a period of six months.

Article 14

Obligations of the notifying State during the period for reply

During the period referred to in article 13, the notifying State:

(a) Shall cooperate with the notified States by providing them, on request, with any additional data and information that is available and necessary for an accurate evaluation; and

(b) Shall not implement or permit the implementation of the planned measures without the consent of the notified States.

Article 15

Reply to notification

The notified States shall communicate their findings to the notifying State as early as possible within the period applicable pursuant to article 13. If a notified State finds that implementation of the planned measures would be inconsistent with the provisions of articles 5 or 7, it shall attach to its finding a documented explanation setting forth the reasons for the finding.

Article 16

Absence of reply to notification

1. If, within the period applicable pursuant to article 13, the notifying State receives no communication under article 15, it may, subject to its obligations under articles 5 and 7, proceed with the implementation of the planned measures, in accordance with the notification and any other data and information provided to the notified States.

2.Any claim to compensation by a notified State which has failed to reply within the period applicable pursuant to article 13 may be offset by the costs incurred by the notifying State for action undertaken after the expiration of the time for a reply which would not have been undertaken if the notified State had objected within that period.

Article 17

Consultations and negotiations concerning planned measures

1. If a communication is made under article 15 that implementation of the planned measures would be inconsistent with the provisions of article 5 or 7, the notifying State and the State making the communication shall enter into consultations and, if necessary, negotiations with a view to arriving at an equitable resolution of the situation.

2.The consultations and negotiations shall be conducted on the basis that each State must in good faith pay reasonable regard to the rights and legitimate interests of the other State.

3.During the course of the consultations and negotiations, the notifying State shall, if so requested by the notified State at the time it makes the communication, refrain from implementing or permitting the implementation of the planned measures for a period of six months unless otherwise agreed.

Article 18

Procedures in the absence of notification

1. If a watercourse State has reasonable grounds to believe that another watercourse State is planning measures that may have a significant adverse effect upon it, the former State may request the latter to apply the provisions of article 12. The request shall be accompanied by a documented explanation setting forth its grounds.

2. In the event that the State planning the measures nevertheless finds that it is not under an obligation to provide a notification under article 12, it shall so inform the other State, providing a documented explanation setting forth the reasons for such finding. If this finding does not satisfy the other State, the two States shall, at the request of that other State, promptly enter into consultations and negotiations in the manner indicated in paragraphs 1 and 2 of article 17.

3.During the course of the consultations and negotiations, the State planning the measures shall, if so requested by the other State at the time it requests the initiation of consultations and negotiations, refrain from implementing or permitting the implementation of those measures for a period of six months unless otherwise agreed.

Article 19

Urgent implementation of planned measures

1. In the event that the implementation of planned measures is of the utmost urgency in order to protect public health, public safety or other equally important interests, the State planning the measures may, subject to articles 5 and 7, immediately proceed to implementation, notwithstanding the provisions of article 14 and paragraph 3 of article 17.

2. In such case, a formal declaration of the urgency of the measures shall be communicated without delay to the other watercourse States referred to in article 12 together with the relevant data and information.

3.The State planning the measures shall, at the request of any of the States referred to in paragraph 2, promptly enter into consultations and negotiations with it in the manner indicated in paragraphs 1 and 2 of article 17.

PART IV.

PROTECTION, PRESERVATION AND MANAGEMENT

Article 20

Protection and preservation of ecosystems

Watercourse States shall, individually and, where appropriate, jointly, protect and preserve the ecosystems of international watercourses.

Article 21

Prevention, reduction and control of pollution

1.For the purpose of this article, “pollution of an international watercourse” means any detrimental alteration in the composition or quality of the waters of an international watercourse which results directly or indirectly from human conduct.

2.Watercourse States shall, individually and, where appropriate, jointly, prevent, reduce and control the pollution of an international watercourse that may cause significant harm to other watercourse States or to their environment, including harm to human health or safety, to the use of the waters for any beneficial purpose or to the living resources of the watercourse. Watercourse States shall take steps to harmonize their policies in this connection.

3.Watercourse States shall, at the request of any of them, consult with a view to arriving at mutually agreeable measures and methods to prevent, reduce and control pollution of an international watercourse, such as:

(a) Setting joint water quality objectives and criteria;

(b) Establishing techniques and practices to address pollution from point and non-point sources;

(c) Establishing lists of substances the introduction of which into the waters of an international watercourse is to be prohibited, limited, investigated or monitored.

Article 22

Introduction of alien or new species

Watercourse States shall take all measures necessary to prevent the introduction of species, alien or new, into an international watercourse which may have effects detrimental to the ecosystem of the watercourse resulting in significant harm to other watercourse States.

Article 23

Protection and preservation of the marine environment

Watercourse States shall, individually and, where appropriate, in cooperation with other States, take all measures with respect to an international watercourse that are necessary to protect and preserve the marine environment, including estuaries, taking into account generally accepted international rules and standards.

Article 24

Management

1.Watercourse States shall, at the request of any of them, enter into consultations concerning the management of an international watercourse, which may include the establishment of a joint

management mechanism.

2.For the purposes of this article, “management” refers, in particular, to:

(a) Planning the sustainable development of an international watercourse and providing for the implementation of any plans adopted; and

(b) Otherwise promoting the rational and optimal utilization, protection and control of the watercourse.

Article 25

Regulation

1.Watercourse States shall cooperate, where appropriate, to respond to needs or opportunities for regulation of the flow of the waters of an international watercourse.

2.Unless otherwise agreed, watercourse States shall participate on an equitable basis in the construction and maintenance or defrayal of the costs of such regulation works as they may have agreed to undertake.

3.For the purposes of this article, “regulation” means the use of hydraulic works or any other continuing measure to alter, vary or otherwise control the flow of the waters of an international watercourse.

Article 26

Installations

1.Watercourse States shall, within their respective territories, employ their best efforts to maintain and protect installations, facilities and other works related to an international watercourse.

2.Watercourse States shall, at the request of any of them which has reasonable grounds to believe that it may suffer significant adverse effects, enter into consultations with regard to:

(a) The safe operation and maintenance of installations, facilities or other works related to an international watercourse; and

(b) The protection of installations, facilities or other works from wilful or negligent acts or the forces of nature.

PART V.

HARMFUL CONDITIONS AND EMERGENCY SITUATIONS

Article 27

Prevention and mitigation of harmful conditions

Watercourse States shall, individually and, where appropriate, jointly, take all appropriate measures to prevent or mitigate conditions related to an international watercourse that may be harmful to other watercourse States, whether resulting from natural causes or human conduct, such as flood or ice conditions, water-borne diseases, siltation, erosion, salt-water intrusion, drought or desertification.

Article 28

Emergency situations

1.For the purposes of this article, “emergency” means a situation that causes, or poses an imminent threat of causing, serious harm to watercourse States or other States and that results suddenly from natural causes, such as floods, the breaking up of ice, landslides or earthquakes, or from human conduct, such as industrial accidents.

2.A watercourse State shall, without delay and by the most expeditious means available, notify other potentially affected States and competent international organizations of any emergency originating within its territory.

3.A watercourse State within whose territory an emergency originates shall, in cooperation with potentially affected States and, where appropriate, competent international organizations, immediately take all practicable measures necessitated by the circumstances to prevent, mitigate and eliminate harmful effects of the emergency.

4.When necessary, watercourse States shall jointly develop contingency plans for responding to emergencies, in cooperation, where appropriate, with other potentially affected States and competent international organizations.

PART VI.

MISCELLANEOUS PROVISIONS

Article 29

International watercourses and installations in time of armed conflict

International watercourses and related installations, facilities and other works shall enjoy the protection accorded by the principles and rules of international law applicable in international and noninternational armed conflict and shall not be used in violation of those principles and rules.

Article 30

Indirect procedures

In cases where there are serious obstacles to direct contacts between watercourse States, the States concerned shall fulfil their obligations of cooperation provided for in the present Convention, including exchange of data and information, notification, communication, consultations and negotiations, through any indirect procedure accepted by them.

Article 31

Data and information vital to national defence or security

Nothing in the present Convention obliges a watercourse State to provide data or information vital to its national defence or security. Nevertheless, that State shall cooperate in good faith with the other watercourse States with a view to providing as much information as possible under the circumstances.

Article 32

Non-discrimination

Unless the watercourse States concerned have agreed otherwise for the protection of the interests of persons, natural or juridical, who have suffered or are under a serious threat of suffering significant transboundary harm as a result of activities related to an international watercourse, a watercourse State shall not discriminate on the basis of nationality or residence or place where the injury occurred, in granting to such persons, in accordance with its legal system, access to judicial or other procedures, or a right to claim compensation or other relief in respect of significant harm caused by such activities carried on in its territory.

Article 33

Settlement of disputes

1. In the event of a dispute between two or more parties concerning the interpretation or application of the present Convention, the parties concerned shall, in the absence of an applicable agreement between them, seek a settlement of the dispute by peaceful means in accordance with the following provisions.

2. If the parties concerned cannot reach agreement by negotiation requested by one of them, they may jointly seek the good offices of, or request mediation or conciliation by, a third party, or make use, as appropriate, of any joint watercourse institutions that may have been established by them or agree to submit the dispute to arbitration or to the International Court of Justice.

3.Subject to the operation of paragraph 10, if after six months from the time of the request for negotiations referred to in paragraph 2, the parties concerned have not been able to settle their dispute through negotiation or any other means referred to in paragraph 2, the dispute shall be submitted, at the request of any of the parties to the dispute, to impartial fact-finding in accordance with paragraphs 4 to 9, unless the parties otherwise agree.

4.A Fact-finding Commission shall be established, composed of one member nominated by each party concerned and in addition a member not having the nationality of any of the parties concerned chosen by the nominated members who shall serve as Chairman.

5. If the members nominated by the parties are unable to agree on a Chairman within three months of the request for the establishment of the Commission, any party concerned may request the Secretary-General of the United Nations to appoint the Chairman who shall not have the nationality of any of the parties to the dispute or of any riparian State of the watercourse concerned. If one of the parties fails to nominate a member within three months of the initial request pursuant to paragraph 3, any other party concerned may request the Secretary-General of the United Nations to appoint a person who shall not have the nationality of any of the parties to the dispute or of any riparian State of the watercourse concerned. The person so appointed shall constitute a single-member Commission.

6.The Commission shall determine its own procedure.

7.The parties concerned have the obligation to provide the Commission with such information as it may require and, on request, to permit the Commission to have access to their respective territory and to inspect any facilities, plant, equipment, construction or natural feature relevant for the purpose of its inquiry.

8.The Commission shall adopt its report by a majority vote, unless it is a single-member Commission, and shall submit that report to the parties concerned setting forth its findings and the reasons therefor and such recommendations as it deems appropriate for an equitable solution of the dispute, which the parties concerned shall consider in good faith.

9.The expenses of the Commission shall be borne equally by the parties concerned.

10. When ratifying, accepting, approving or acceding to the present Convention, or at any time thereafter, a party which is not a regional economic integration organization may declare in a written instrument submitted to the depositary that, in respect of any dispute not resolved in accordance with paragraph 2, it recognizes as compulsory ipso facto, and without special agreement in relation to any party accepting the same obligation:

(a) Submission of the dispute to the International Court of Justice; and/or

(b) Arbitration by an arbitral tribunal established and operating, unless the parties to the dispute otherwise agreed, in accordance with the procedure laid down in the annex to the present Convention.

A party which is a regional economic integration organization may make a declaration with like effect in relation to arbitration in accordance with subparagraph (b).

PART VII.

FINAL CLAUSES

Article 34

Signature

The present Convention shall be open for signature by all States and by regional economic integration organizations from 21 May 1997 until 20 May 2000 at United Nations Headquarters in New York.

Article 35

Ratification, acceptance, approval or accession

1.The present Convention is subject to ratification, acceptance, approval or accession by States and by regional economic integration organizations. The instruments of ratification, acceptance, approval or accession shall be deposited with the Secretary-General of the United Nations.

2.Any regional economic integration organization which becomes a Party to this Convention without any of its member States being a Party shall be bound by all the obligations under the Convention. In the case of such organizations, one or more of whose member States is a Party to this Convention, the organization and its member States shall decide on their respective responsibilities for the performance of their obligations under the Convention. In such cases, the organization and the member States shall not be entitled to exercise rights under the Convention concurrently.

3. In their instruments of ratification, acceptance, approval or accession, the regional economic integration organizations shall declare the extent of their competence with respect to the matters governed by the Convention. These organizations shall also inform the Secretary-General of the United Nations of any substantial modification in the extent of their competence.

Article 36

Entry into force

1.The present Convention shall enter into force on the ninetieth day following the date of deposit of the thirty-fifth instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations.

2.For each State or regional economic integration organization that ratifies, accepts or approves the Convention or accedes thereto after the deposit of the thirty-fifth instrument of ratification, acceptance, approval or accession, the Convention shall enter into force on the ninetieth day after the deposit by such State or regional economic integration organization of its instrument of ratification, acceptance, approval or accession.

3.For the purposes of paragraphs 1 and 2, any instrument deposited by a regional economic integration organization shall not be counted as additional to those deposited by States.

Article 37

Authentic texts

The original of the present Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.

IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly authorized thereto, have

signed this Convention.

DONE at New York, this twenty-first day of May one thousand nine hundred and ninety-seven.

ANNEX

ARBITRATION

Article 1

Unless the parties to the dispute otherwise agree, the arbitration pursuant to article 33 of the Convention shall take place in accordance with articles 2 to 14 of the present annex.

Article 2

The claimant party shall notify the respondent party that it is referring a dispute to arbitration pursuant to article 33 of the Convention. The notification shall state the subject matter of arbitration and include, in particular, the articles of the Convention, the interpretation or application of which are at issue. If the parties do not agree on the subject matter of the dispute, the arbitral tribunal shall determine the subject matter.

Article 3

1. In disputes between two parties, the arbitral tribunal shall consist of three members. Each of the parties to the dispute shall appoint an arbitrator and the two arbitrators so appointed shall designate by common agreement the third arbitrator, who shall be the Chairman of the tribunal. The latter shall not be a national of one of the parties to the dispute or of any riparian State of the watercourse concerned, nor have his or her usual place of residence in the territory of one of these parties or such riparian State, nor have dealt with the case in any other capacity.

2. In disputes between more than two parties, parties in the same interest shall appoint one arbitrator jointly by agreement.

3.Any vacancy shall be filled in the manner prescribed for the initial appointment.

Article 4

1. If the Chairman of the arbitral tribunal has not been designated within two months of the appointment of the second arbitrator, the President of the International Court of Justice shall, at the request of a party, designate the Chairman within a further two-month period.

2. If one of the parties to the dispute does not appoint an arbitrator within two months of receipt of the request, the other party may inform the President of the International Court of Justice, who shall make the designation within a further two-month period.

Article 5

The arbitral tribunal shall render its decisions in accordance with the provisions of this Convention and international law.

Article 6

Unless the parties to the dispute otherwise agree, the arbitral tribunal shall determine its own rules of procedure.

Article 7

The arbitral tribunal may, at the request of one of the parties, recommend essential interim measures of protection.

Article 8

1.The parties to the dispute shall facilitate the work of the arbitral tribunal and, in particular, using all means at their disposal, shall:

(a) Provide it with all relevant documents, information and facilities; and

(b) Enable it, when necessary, to call witnesses or experts and receive their evidence.

2.The parties and the arbitrators are under an obligation to protect the confidentiality of any information they receive in confidence during the proceedings of the arbitral tribunal.

Article 9

Unless the arbitral tribunal determines otherwise because of the particular circumstances of the case, the costs of the tribunal shall be borne by the parties to the dispute in equal shares. The tribunal shall keep a record of all its costs, and shall furnish a final statement thereof to the parties.

Article 10

Any party that has an interest of a legal nature in the subject matter of the dispute which may be affected by the decision in the case, may intervene in the proceedings with the consent of the tribunal.

Article 11

The tribunal may hear and determine counterclaims arising directly out of the subject matter of the dispute.

Article 12

Decisions both on procedure and substance of the arbitral tribunal shall be taken by a majority vote of its members.

Article 13

If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or a failure of a party to defend its case shall not constitute a bar to the proceedings. Before rendering its final decision, the arbitral tribunal must satisfy itself that the claim is well founded in fact and law.

Article 14

1.The tribunal shall render its final decision within five months of the date on which it is fully constituted unless it finds it necessary to extend the time limit for a period which should not exceed five more months.

2.The final decision of the arbitral tribunal shall be confined to the subject matter of the dispute and shall state the reasons on which it is based. It shall contain the names of the members who have participated and the date of the final decision. Any member of the tribunal may attach a separate or dissenting opinion to the final decision.

3.The award shall be binding on the parties to the dispute. It shall be without appeal unless the parties to the dispute have agreed in advance to an appellate procedure.

4.Any controversy which may arise between the parties to the dispute as regards the interpretation or manner of implementation of the final decision may be submitted by either party for decision to the arbitral tribunal which rendered it.

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