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Sixty-sixth session

The law of transboundary aquifers (Agenda item 85)

Summary of work

Background (source: A/66/100)

At its sixty-third session, in 2008, the General Assembly, under the item entitled “Report of the International Law Commission on the work of its sixtieth session”, considered chapter IV of the report of the Commission, which contained the draft articles on the law of transboundary aquifers, together with commentaries and recommendation that the Assembly take note of the draft articles on the law of transboundary aquifers in a resolution and annex those articles to the resolution, recommend to States concerned to make appropriate bilateral or regional arrangements for the proper management of their transboundary aquifers on the basis of the principles enunciated in those articles and consider, at a later stage, and in view of the importance of the topic, the elaboration of a convention on the basis of the draft articles.
The General Assembly welcomed the conclusion of the work of the Commission on the law of transboundary aquifers and its adoption of the draft articles and a detailed commentary on the subject; took note of the draft articles, the text of which was annexed to its resolution; commended them to the attention of Governments without prejudice to the question of their future adoption or other appropriate action; encouraged the States concerned to make appropriate bilateral or regional arrangements for the proper management of their transboundary aquifers, taking into account the provisions of the draft articles; and decided to include this item in the provisional agenda of its sixty-sixth session with a view to examining, in particular, the question of the form that might be given to the draft articles (resolution 63/124).

Consideration at the sixty-sixth session

The Sixth Committee considered the item at its 16th and 29th meetings, on 18 October and 9 November 2011 (see A/C.6/66/SR.16 and 29). For its consideration of the item, the Committee had before it a report of the Secretary-General containing comments and observations of Governments on the draft articles on the law of transboundary aquifers (A/66/116 and Add.1).

Statements were made by the representatives of: Uruguay (on behalf of Brazil, Paraguay, Uruguay and Venezuela (Member States of Mercosur)), Japan, El Salvador, Mexico, India, Slovenia, Hungary, Malaysia, the United States of America, Algeria, Portugal, the Russian Federation, Viet Nam, Venezuela, China, the Philippines, Lebanon, Turkey, Bolivia (Plurinational State of), Israel, France, Ukraine, Italy and Peru. The observer representative of UNESCO also made a statement.

Delegations welcomed the report of the Secretary-General on the item and expressed their appreciation to the International Law Commission for the preparation and adoption of the draft articles on the law of transboundary aquifers. Delegations also recognized the important contribution of UNESCO to the appreciation of the topic.

It was pointed out that the draft articles were the first systematic formulation of international law at the global level applicable to aquifers. It was noted that the draft articles had achieved a fair balance between the rights and obligations of States.  Attention was also drawn to the “Agreement on the Guarani Aquifer” concluded between Argentina, Brazil, Paraguay and Uruguay, which took into account the principles of the draft articles.

Although several delegations made substantive comments on the draft articles, the focus was mainly on the future form that the draft articles should take. In this connection, some delegations, expressing preference for a convention, noted that the time was ripe to commence negotiations on the subject. The view was also expressed advocating a step- by-step approach which contemplated the draft articles evolving subsequently into an international framework convention. Some other delegations, while not ruling out the possibility of a convention in the future, were of the view that the elaboration of a legally binding instrument on the basis of the draft articles was, at the current stage, premature. In this regard, the need for State practice (through bilateral and regional arrangements) to develop further was highlighted. It was pointed out that the purpose of the draft articles could be achieved by entering into bilateral and regional arrangements, noting also that was still room for improvement of the draft articles.

According to another viewpoint, the adoption of the draft articles in the form of a declaration of principles on the law of transboundary aquifers was considered appropriate. Thus, the draft articles could take the form of a non-legally binding resolution or declaration and would serve as general guidelines for State practice. The appropriateness of the draft articles as guidelines for States when concluding bilateral or regional agreements was also emphasized.

The view was also expressed affirming the continued belief in context-specific arrangements as opposed to a global framework instrument. It was surmised that if the draft articles were fashioned into a global convention, it was unlikely that such an instrument would garner sufficient support among States.

Yet some other delegations remained flexible as to the final form of the draft articles, while stressing the need to carry out an analysis of the core purpose of the draft articles in order to decide on the final form.

Action taken by the Sixth Committee

At the 29th meeting, on 9 November 2011, the representative of Japan, on behalf of the Bureau, introduced a draft resolution entitled “The Law of Transboundary Aquifers” (A/C.6/66/L.24) and oral revisions thereto (see document A/66/477, para. 5). At the same meeting, the Committee adopted draft resolution A/C.6/66/L.24, as orally revised, without a vote.

By the terms of the resolution, the General Assembly would, inter alia, further encourage States concerned to make appropriate bilateral or regional arrangements for the proper management of their transboundary aquifers, taking into account the provisions of the draft articles annexed to its resolution 63/124; encourage the International Hydrological Programme of the United Nations Educational, Scientific and Cultural Organization, whose contribution was noted in resolution 63/124, to offer further scientific and technical assistance to the States concerned; and decide include in the provisional agenda of its sixty-eighth session the item entitled “The law of transboundary aquifers” and, in the light of written comments of Governments, as well as views expressed in the debates of the Sixth Committee held at its sixty-third and sixty-sixth sessions, to continue to examine, inter alia, the question of the final form that might be given to the draft articles.

This agenda item was subsequently considered at the sixty-eighth session (2013).