The law of transboundary aquifers (Agenda item 87)
Summary of work
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 a 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 Assembly welcomed the conclusion of the work of the Commission on the law of transboundary aquifers, accepted the Commission’s recommendations and commended the draft articles to the attention of Governments without prejudice to the question of their future adoption or other appropriate action (resolution 63/124).
At its sixty-sixth session, the General Assembly further 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 encouraged the International Hydrological Programme of the United Nations Educational, Scientific and Cultural Organization to offer further scientific and technical assistance to the States concerned. The Assembly also decided, 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 (resolution 66/104).
Consideration at the sixty-eighth session
The Sixth Committee considered the item at its 16th and 29th meetings, on 22 October and 15 November 2013 (see A/C.6/68/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/68/172).
Statements were made by the representatives of Uruguay (also on behalf of Argentina, Brazil, and Paraguay), Bahrain (on behalf of the Arab Group), Japan, Qatar, the United States of America, Guatemala, Portugal, Malaysia, Peru, Chile, Ukraine, Israel, the Russian Federation, Italy and India. A statement was also made by the observer of the State of Palestine.
A number of delegations made specific comments on the draft articles. According to some delegations the draft articles had achieved a fair balance between the rights and obligations of States. Another view emphasized the importance of balancing the rights and responsibilities of States in the proper management of transboundary aquifers.
In terms of application of the draft articles in practice, delegations noted the conclusion of the Agreement on the Guarani Aquifer and drew the attention of the Committee to the Model Provisions on Transboundary Groundwaters adopted by the Meeting of the Parties of the Convention on the Protection and Use of Transboundary Watercourses and International Lakes in 2012.
As to the future form of the draft articles, some delegations proposed the adoption of the draft articles in the form of a declaration of principles on the law of transboundary aquifers, which would serve as guidelines for States in their elaboration and conclusion of bilateral or regional agreements. The view was also expressed that the draft articles may be adopted as guiding principles, if there was consensus to that effect. Other delegations reiterated their view that the draft articles should evolve into an international framework convention. Some other delegations reaffirmed their continued belief in context-specific arrangements as opposed to an international framework treaty, and asserted that the draft articles should be taken into account by the States concerned in the negotiation of bilateral or regional agreements. It was further emphasized that the draft articles should not be considered as the basis for an international convention but may be useful as a voluntary guide for concluding bilateral or regional arrangements.
Some delegations stated that the elaboration of a legally binding instrument was premature and stressed the need for further scientific and technical knowledge in this area. Continued examination of State practice (through bilateral and regional arrangements) was suggested, and it was reiterated that the final form of the draft articles should be considered at a later stage. It was also noted that any international convention would have to take account of existing international agreements, including the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses.
Action taken by the Sixth Committee
At the 29th meeting, on 15 November, the representative of Japan, on behalf of the Bureau, introduced a draft resolution entitled “The law of transboundary aquifers” (A/C.6/68/L.25). At the same meeting, the Committee adopted draft resolution A/C.6/68/L.25, without a vote.
By the terms of the resolution, the General Assembly would commend the draft articles annexed to the resolution to the attention of Governments as guidance for bilateral or regional agreements and arrangements for the proper management of transboundary aquifers; encourage the International Hydrological Programme of UNESCO to continue its contribution through offering further scientific and technical assistance to the States concerned; and include in the provisional agenda of its seventy-first session an item entitled “The law of transboundary aquifers”.