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Congress: 2008
disponible également en français: Titre: PENSER LES CONDITIONS D’UN RÉGIME UNIVERSEL POUR LES RESSOURCES EN EAU ET LE CYCLE HYDROLOGIQUE Résumé: 30 ans après Mar del Plata, il est plus que temps d’envisager un statut et un régime universels pour les

Keyword(s): common heritage of mankind, hydrological cycle, global interdependency, institutions, global public goods, standards
Abstract30 years after Mar del Plata, it is long past time to envisage a universal status and framework for water resources and the hydrological cycle despite the difficulties involved. As noted by Houria Tazi Sadeq in February 2007 during the Paris Conference for world ecological governance, “Why doesn’t the question of water benefit from a global convention such as that which exists for biodiversity and for climate change?” In 2008, in the context of global changes that will impact water resources, it becomes imperative to consider the conditions of a status for this vital resource. The rapporteur McCaffrey had already noted: The international community has a strong interest in this resource, including its protection and equitable apportionment. It would be going too far in the current state of international law to suggest that all freshwater is res communis. But it is critical that states begin to conceive of the hydrological cycle in this way (2001, 53). Some people have envisaged the concept of common human heritage as the core of a new discipline: Planetary Resources Management Law (Baslar, 1998). J. A. Barberis (1987) calls for this status for groundwater at great depth; E. Brown Weiss (1989) refers to it; J. Sohnle calls for this status with regard to polar ice, clouds and ocean precipitation as well as groundwater at great depth (2002); S. C. McCaffrey uses the concept of stewardship of the hydrological cycle. Legal status and an appropriate framework for fresh water should enable us to respond to complexity and universality, duly taking into account the dialectic character of the human/nature relationship and of local/global interdependence. It should enable us to provide legal content to the economic concept of sustainable development in order to preserve the regeneration capabilities of resources, cycles, processes and equilibriums. On the other hand, given the mobile nature of water, such a plan must be understood in its functional nature, as a management/governed plan for use to humanity’s benefit: the territorial criterion has little relevance with regard to resources or to complex and interdependent ecosystems, and leads to a fragmented vision, incapable of taking into account the many interactions. In the case of environmental resources, it is no longer a case of defining ownership status, but of defining stewardship and responsibility (Birnie & Boyle, 1992, 85). We will therefore specify successively here the criteria for determination of such a status – the functional criterion, the principle of solidarity and the criterion of “common concern” – the appropriate scale for consideration, including the point of view of distribution and of the limit of powers, considering the interdependence of the hydrosphere as well as the ends, of the preservation and redistribution sought by such a status and such a framework. Finally, we will outline the normative and institutional requirements. The framework proposed here for global freshwater resources does not pretend to apply in se, but, despite the weakness and the rarity of the tools available to us, legal research on the foundations, the criteria, the standards and the institutions essential for the identification of global public goods, for the determination and the implementation of the universal public interest, cannot be dismissed, since “without being defined by law, this interpretation is free, left to the discretion of those who possess the means” (Badie, 1999, 293).
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