Sixth Committee (Legal) — 71st session
The law of transboundary aquifers (Agenda item 86)
- Authority: resolution 68/118
Summary of work
Background (source: A/71/100)
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 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).
At its sixty-eighth session, the General Assembly commended to the attention of Governments the draft articles on the law of transboundary aquifers (resolution 68/118, annex), as guidance for bilateral or regional agreements and arrangements for the proper management of transboundary aquifers; encouraged the International Hydrological Programme of the United Nations Educational, Scientific and Cultural Organization to continue its contribution by offering further scientific and technical assistance to the States concerned; and decided to include in the provisional agenda of its seventy-first session the item entitled “The law of transboundary aquifers” (resolution 68/118).
Consideration at the seventy-first session
The Sixth Committee considered the item at its 18th, 19th and 33rd meetings, on 20 October and on 11 November 2016 (see A/C.6/71/SR.18, 19 and 33).
Statements were made by the representatives of Tunisia (on behalf of the Arab Group), Argentina (also on behalf of Brazil, Paraguay and Uruguay), Qatar, El Salvador, the Russian Federation, Japan, Chile, Israel, Bangladesh, Venezuela (Bolivarian Republic of), Viet Nam, Algeria, the United States of America and Morocco.
Delegations generally reiterated their appreciation to the International Law Commission for the preparation of the draft articles, which concerned a very important topic. Delegations also recognized the important contribution to the topic by the International Hydrological Programme of the United Nations Educational, Scientific and Cultural Organization. In particular, several delegations stressed the need for further scientific and technical knowledge in this area. The social and economic factors linked to the exploitation of transboundary aquifers, and the importance of capacity-building, technical assistance and international cooperation, were also underlined. The view was expressed that carrying out a complete survey of all aquifers in the world would further foster cooperation at the international level.
Many delegations made substantive comments on the draft articles. According to a number of delegations, the draft articles had achieved a clear and fair balance between the rights and obligations of States. The importance of balancing the rights and responsibilities of States in the proper management of transboundary aquifers was underlined. Some delegations expressed the view that sovereignty over aquifers must be exercised in conformity with other rules of international law, which provide limits to the overuse or exploitation thereof. The view was also expressed by a number of delegations that the issue of a potential overuse of resources was especially prevalent, for different reasons, in areas with a dry climate and in areas under foreign occupation. According to some delegations, a more appropriate subject for the draft articles would have been all international common aquifers, not only those which are transboundary in nature, because questions of reasonable and equitable use may arise from the transboundary effects of the exploitation of aquifers which are not transboundary. The need to apply the concept of equitable use in relation to future generations was also underlined.
In terms of application of the draft articles in practice, some delegations recalled the conclusion of the 2010 Agreement on the Guarani Aquifer, which constituted an important step in the implementation of the principles. A number of delegations referred to their own practice and domestic legislation in application of the principles enshrined in the draft articles. Several delegations made reference to the adoption of the 2030 Development Agenda, and in particular to goal 6 thereof, concerning ensuring availability and sustainable management of water and sanitation for all. Other recent developments were underlined, such as the Memorandum of Understanding for the Establishment of a Consultation Mechanism for the Integrated Management of the Water Resources of the Iullemeden, Taoudeni/ Tanezrouft Aquifer Systems adopted by Algeria, Benin, Burkina Faso, Mali, Mauritania, Niger and Nigeria on 28 March 2014. The Secretary-General was invited to consider recent State practice on transboundary aquifers when planning activities concerning water management.
As to the future form of the draft articles, a number of delegations envisaged 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. Other delegations reiterated that the draft articles should evolve into an international framework convention. Indeed, while the need for a legally binding instrument was underlined by a number of delegations, other delegations reaffirmed their continued belief in context-specific arrangements and asserted that the draft articles should be taken into account by the States concerned in the negotiation of bilateral or regional agreements. While not ruling out an international convention in the future, some delegations emphasized that it might be too early to achieve consensus. A number of delegations expressed the view that the articles already had the status of guidelines to be employed by States when negotiating regional and bilateral treaties. Several delegations also noted that any international convention to be negotiated in the future would have to take account of existing international agreements, including the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses and the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Water Convention).
Action taken by the Sixth Committee
At the 33rd meeting, on 11 November, the representative of Japan, on behalf of the Bureau, introduced a draft resolution entitled “The law of transboundary aquifers” (A/C.6/71/L.22). At the same meeting, the Committee adopted the draft resolution without a vote. Under the terms of this draft resolution, the Assembly would, inter alia, once again commend the draft articles annexed to its resolution 68/118 to the attention of Governments as guidance for bilateral or regional agreements and arrangements for the proper management of transboundary aquifers, and it would encourage the International Hydrological Programme of the United Nations Educational, Scientific and Cultural Organization to continue its contribution by providing further scientific and technical assistance upon the consent of the recipient State and within its mandate.
Subsequent action taken by the General Assembly
This agenda item will be considered at the seventy-fourth session (2019).
