United Nations

A/51/275/Add.1


General Assembly

Distr. GENERAL  

12 September 1996

ORIGINAL:
FRENCH


General Assembly
Fifty-first session
Item 146 of the provisional agenda*

*    A/51/150.


              CONVENTION ON THE LAW OF THE NON-NAVIGATIONAL USES
                         OF INTERNATIONAL WATERCOURSES

             Draft articles on the law of the non-navigational uses of
             international watercourses and resolution on confined
                           transboundary groundwater

                        Report of the Secretary-General

                                   Addendum


                                   CONTENTS

                                                                         Page

II.   COMMENTS AND OBSERVATIONS RECEIVED FROM STATES...................    3

      A.  General comments and observations on the draft 
              Italy ...................................................    3

      ...

      C. Comments and observations relating to specific articles             

         Article 7.  Obligation not to cause harm                     
              Niger ....................................................   4

         Article 9.  General obligation to cooperate                   
              Niger ....................................................   4

         Article 17.  Consultations and negotiations concerning planned
                      measures 
              Niger ....................................................   5

         Article 19.  Urgent implementation of planned measures
              Niger ....................................................   5

         Article 26.  Installations
              Niger ....................................................   5


              II.  COMMENTS AND OBSERVATIONS RECEIVED FROM STATES

              A.  General comments and observations on the draft

                                     ITALY

                                                            [9 September 1996]

1.   The draft prepared by the International Law Commission and adopted
by the Commission at its forty-sixth session represents an important
and constructive effort to regulate a matter which is undeniably both
complex and delicate.  We agree with the concept of an "international
watercourse" that can be deduced from the combination of
subparagraphs (a) and (b) of article 2, which is the outcome of
careful drafting by the Commission.

2.   The agreement has the characteristics of a framework agreement
which in no way precludes the conclusion of application agreements
aimed at solving specific problems and creating the most appropriate
rules for the various contexts concerned.  The agreement seeks to
define a number of principles and criteria that are to be taken as
basic rules and transposed into application agreements so as to orient
the regulation of the sector.  Consequently, the principles and
criteria identified by the framework agreement cannot be considered to
have the character of jus cogens.

3.   The principles in question are the following:  

     Equitable and reasonable utilization of watercourses, as already
decided by arbitration in the Lake Lanoux case.  The equity and
reasonable character must be evaluated and weighed in the light of a
number of relevant factors, a non-exhaustive list of which is given in
article 6;

     Obligation not to cause significant harm.  This principle
establishes the need to preserve and protect international
watercourses.  The use of the term "significant" ("significant
extent", art. 3, para. 2; "significant harm", art. 7; "significant
adverse effect", art. 12) establishes an important link between
certain provisions of the draft and the provisions of the Commission's
draft articles on international liability for injurious consequences
arising out of acts not prohibited by international law, indicating
progress with regard to terminological and legislative harmonization. 
The concept of "significant harm" represents an effective compromise
between the need to guarantee protection of the environment and the
need to permit the free exercise of State sovereignty;

     Protection of international watercourses and their environment in
time of armed conflict.  The relevant provisions of the 1949 Geneva
codification and the 1977 Protocols, which are implicitly evoked in
article 29, are applicable in this context;

     Respect for existing regimes.  A subordination clause is in effect
in this regard (as can be deduced from article 3) which must, however,
be reconstituted in the light of the observations in paragraph 1;

     Cooperation between the States concerned (art. 8).  This is a
fundamental rule defining the regime established by the Convention. 
On the basis of the decisions of the International Court of Justice
(the River Oder case, the Diversion of Water from the Meuse case, the
Corfu Channel case, the Lake Lanoux arbitration and the Trail Smelter
arbitration), it may be said that there is a tendency to limit the
rights and duties of each State concerned, rather than identifying
exclusive and unlimited rights or powers.   

4.   Cooperation does not imply a clear obligation to conclude
agreements and thus does not prevent the States concerned from
exercising certain rights even in the absence of a treaty.  

5.   Other important provisions set limits to the activity of the
States concerned in the exercise of their subjective rights over a
watercourse (articles 11-19), especially with regard to the
protection, preservation and management of watercourses (articles 20-
26).  The first group of provisions imposes on the States concerned
obligations which are essentially procedural in nature and limit the
unilateral utilization of watercourses in the absence of a specific
set of rules established by a regional agreement.  The second group of
provisions is aimed at satisfying the requirements essential to the
protection of watercourse environments and thus consists basically of
substantive provisions.  

6.   The draft as a whole is very satisfactory.  Its provisions will
help to affirm the principle of solidarity, which is assuming
increasing importance in diplomatic practice and international
jurisprudence and is being promoted by the International Law
Commission, which is in the forefront of international legal thinking
in this domain.


          C.  Comments and observations relating to specific articles

                                     NIGER

                                                           [21 September 1996]

Article 7

     The meaning of the words "watercourse States shall exercise due
diligence to utilize an international watercourse ..." is not very
clear.  Does it refer to practical arrangements which the State or
States concerned would make to ensure that any harm caused would not
be significant?

Article 9, paragraph 3

     The words "to process data and information in a manner which"
should be replaced by the words "to process reliable data and
information".  Provision should be made for machinery to verify the
reliability of the information.

Article 17

     As a precaution, and in order to ensure that the consultations
succeed, the implementation of any planned measure should be frozen.  

Article 19, paragraph 1

     The words "or other equally important interests" should be
deleted, for they might give the "planning" State a pretext to
undertake activities causing harm to other watercourse States without
even asking for their views.

Article 26, paragraph 2

     It would be desirable to list the forces of nature referred to in
subparagraph (b).


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