وضعیت حقوقی ابرها در حقوق بین الملل (مقاله علمی وزارت علوم)
درجه علمی: نشریه علمی (وزارت علوم)
آرشیو
چکیده
در جهان امروز، بحران بی آبی یکی از بحران های جدی جامعه بشری به شمار می رود. حقوق بین الملل برای مدیریت و ایجاد چارچوب حقوقی مؤثر برای ساماندهی آب شیرین موجود در ابرها رسالتی سنگین بر دوش دارد. یکی از ابعاد این موضوع، مطالعه رژیم حقوقی آب های موجود در ابرهاست. در این سیاق، یکی از پرسش های مهم، قانونی بودن مداخله دولت ها در فرآیند بارش و به ویژه مسئله بارورکردن مصنوعی ابرها است که می تواند آثاری خارج از حدود صلاحیت سرزمین ها به جای بگذارد. این مقاله با عنایت به ابهام موجود در رژیم حقوقی بین المللی این موضوع، نقش اصول کلی حقوق بین الملل را برای ترسیم رژیم حقوقی حاکم بر ابرها و مسئولیت بین المللی ناشی از آن مطالعه می کند. جدا از اصول کلی حقوقی حاکم بر این موضوع، عملکرد کمیسیون حقوق بین الملل در موضوع مسئولیت دولت ها در ارتکاب اعمال خطرناک غیرممنوع در حقوق بین الملل به عنوان راهنمای رژیم حقوقی حاکم بر تولید ابرهای مصنوعی در این نوشتار مورد توجه و گرته برداری قرار گرفته است.A reflection on the legal status of clouds in international law
Extended AbstractToday, international law is responsible for managing and creating an effective legal framework for organizing fresh water in the clouds. One of the most important tensions in the world is the frequency of witnessing crises, one of which being the issue of "legal dimensions of artificial fertilization of clouds", especially when it is carried out in border areas between States. This point has become increasingly important in recent years. On the one hand, trying to intervene in the precipitation process and changing its natural circulation can affect the normal precipitation process, and as a result, a group of governments can benefit more from the water resources in the atmosphere at the expense of another group of governments. On the other hand, there is no doubt that the issue of interfering in the normal process of cloud precipitation is one of the major issues regarding the concept of development.The main issue of the research is how international law can help to solve the disputes related to the artificial fertilization of clouds. In this context, the most important questions are as follows:Are States, in the international normative order, entitled to the water reserves in the clouds that exist within their territory? And if the answer to this question is positive, can they directly claim their right from the said resources?In this article - with a descriptive analytical method - by examining the right of States to the water resources in the clouds from the perspective of international law, this hypothesis has been investigated that despite the shortcomings of the international law treaty system related to clouds, general principles of law have created duties and rights for States in this field. By examining State practice, this article has tried to examine and analyze their approach in this field.The most important findings of this article focus on three fundamental principles that should be taken into account in the use of fresh water sources of clouds: First, the principle of peaceful use of these water resources; Second, considering the needs of developing and least developed countries in terms of water resources, and third, this important principle that any material and physical exploitation should be carried out by considering the interest of the current and future generations. In relation to the last principle, it means that this exploitation should not be for the benefit of a specific State or a particular group, and that humanity as a whole should benefit from it. However, in the matter of clouds, we are facing an important difficulty: the volume of water that evaporates from the open seas cannot be calculated, and in the same way, the amount of water necessary for States that are exposed to droughts are unknown. In such a situation, similar to the arrangements governing the status of the seabed authority as well as the rules governing the exploitation of this area, this amount can be determined within the framework of the rules regarding the administrative process by one of the specialized agencies of the United Nations. In this context, water transfer and related costs can be provided through donations from developed countries. However, it must be acknowledged that in the current situation, the implementation of such a solution does not seem very likely, but the experience of codification of international law regulations in this field shows that the public international law already recognizes the rights of States that are in a geographically disadvantaged situation from the place of "common heritage of mankind".While emphasizing on geographical facts, this article comes to an important conclusion that the water within the clouds can be considered as an absolute common resource among States, and therefore the clouds should not be subject to the sole ownership of a particular State.In this article, it is argued that the international legal regime of clouds is moving towards subjecting the precipitation to the ownership of no particular State, and for the purpose of preventing abuse, uses general principles of law such as the principle of not harming others.This article tries to establish a right for States that are in an unfavorable geographical position, and at the same time, aims to prevent the possible damage that interference in the process of cloud formation can bring to the States.It is true that when we talk about the legal status of a complex resource such as water within the clouds, the proposed solutions are dependent on the way we analyze the issue. In this article, an attempt has been made to re-imagine this natural phenomenon with regard to its close relationship with humanity and the environment that form a close bond to it. In this connection, the most important related issue is the right of States to access natural water resources. The important fact has been taken into consideration that although access to water is considered a basic need of humanity, there is still a serious disagreement over the formation of the "right to water" as a human right. The important effort of this article is to use general principles of law to fill lacunae in this connection. The truth is that relying only on general principles of law have certain limitations. The vagueness and generality of these principles can lead to unfair results. In such a situation, international law with an eschatological approach and emphasizing the need of the members of the world community for water, should try to present a fair approach in this field. The goal is to create a balance between the needs of the international community and the challenges of commercial exploitation of clouds, and at the same time, use cloud fertilization technology for the benefit of regions that do not have a favorable geographical situation. The international law of clouds is an important branch of the international law of waters, which should be analyzed closer and advanced each and every day due to the substantial growth of technology in this field.
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