LEGAL COMMITTEE IS TOLD PROTECTION OF GLOBAL WATER RESOURCES, NOW URGENT NECESSITY, IS STRENGTHENED BY LAW COMMISSION PROPOSALS

28 October 2008
GA/L/3352

LEGAL COMMITTEE IS TOLD PROTECTION OF GLOBAL WATER RESOURCES, NOW URGENT NECESSITY, IS STRENGTHENED BY LAW COMMISSION PROPOSALS

28 October 2008
General Assembly
GA/L/3352
Department of Public Information • News and Media Division • New York

Sixty-third General Assembly

Sixth Committee

17th Meeting (AM)

LEGAL COMMITTEE IS TOLD PROTECTION OF GLOBAL WATER RESOURCES, NOW

URGENT NECESSITY, IS STRENGTHENED BY LAW COMMISSION PROPOSALS

Some See Impact of Treaty Obligations as Force for Good for Natural

Resources; Others Argue for Care in Finalizing of International Document

Given the growing importance of protecting water resources for all of humanity, the draft articles elaborated by the International Law Commission on transboundary aquifers should become treaty obligations in the near future, Poland’s delegate told the Sixth Committee (Legal) today, as the Committee continued its review of the Commission’s annual report, with a focus on shared natural resources, the effect of armed conflicts on treaties, and other matters.

Giving these rules the force of a treaty obligation would strengthen their impact in protecting natural resources that were threatened from various sources and directions, he said.  Expanding the scope of the articles to include other shared natural resources, such as oil and gas, might be worth exploring.

Malaysia’s representative, however, said a convention on the matter could not be elaborated quickly without the consensus of States.  Despite the importance of responding to the global water crisis, the draft articles, at present, should be used as guidelines for bilateral or regional arrangements.  This would take into account the capacities and resources of States.

Greece’s delegate said the articles contributed to a coherent approach to water issues in international law.  They incorporated the principles of equitable and reasonable use, cooperation and obligation to not cause significant harm.  The threshold of “significant harm”, however, was unjustifiably high.

The representative of Argentina noted that the articles contained the main elements of a legal regime for transboundary aquifers, and said the principle on State sovereignty was welcome.  Aquifers belonged to States, notwithstanding obligations to cooperate for their rational use.

Setting out mechanisms for cooperation was not a threat to State sovereignty, Mexico’s delegate said.  Such norms were central to preventing natural resources from becoming the object of conflicts.  The articles struck a good balance between vital human interests, rights of States and exploitation of resources.

Noting her country’s exclusively bilateral governance of a shared boundary with the United States, Canada’s representative said the draft articles would be considered only as a set of model principles.  Movement beyond these principles, either in the form of a model or framework convention, would be problematic; the same went for the shared oil and gas issue, which was essentially bilateral, highly technical and encompassed diverse regional situations.

Observing that her country obviously did not share aquifers with other countries, Australia’s representative said while she supported a cooperative framework to properly manage transboundary aquifers, concerned States had to decide whether that was best accomplished through a global instrument, or context-specific regional and local agreements.  The decision, when reached, should be treated separately from shared oil and gas; those resources were not suited to a “one-size-fits-all” solution, such as an international treaty. 

The representative of China said the Commission’s work on shared natural resources was largely the progressive development of international law, rather than codification of “customary international law”.  Nevertheless, whether the articles could serve the purpose of developing international law progressively needed to be verified by more State practice.  On the other topic under consideration today, regarding the effects of armed conflicts on treaties, he said the articles conveyed the principle that an armed conflict did not necessarily terminate or suspend treaty relations.  Rather, the articles envisaged scenarios, and set out indicators for susceptibility of treaties to termination, suspension or withdrawal due to armed conflicts.

India’s delegate, on that matter, emphasized the importance of the principle of continuity of treaty relations between States.  He said the principle of continuity was essential in safeguarding the stability and certainty of treaty relations between States.

Speaking further on both those matters were the representatives of Japan, El Salvador, Venezuela, Hungary and Kenya.

In addition to its debate, the Committee participated today in the launch of the United Nations Audiovisual Library of International Law, an Internet resource consisting of a lecture series, historic archives and research library to be available, free of charge, to institutions and individuals around the world.

The Sixth Committee will meet again at 10 a.m. tomorrow, Wednesday, 29 October, to continue debate on the report of the International Law Commission, with a focus on topics discussed today, as well as on the Commission’s items on reservations to treaties, the responsibility of international organizations and expulsion.

Background

The Sixth Committee (Legal) met today to continue its consideration of the report of the International Law Commission, with a continued focus on the topics of transboundary aquifers (within the “umbrella” of shared natural resources) and the effect of armed conflict on treaties, other decisions and conclusions concerning the Commission’s work.  (For background on the report, see Press Release GA/L/3351 of 27 October.)

Statements

NOBUYUKI MURAI ( Japan) said the Law Commission was to be commended for finishing the work on the transboundary aquifer articles within six years, in response to the urgent need to address the critical problem of freshwater resources and for providing a legal framework for managing them.  Japan had contributed to the work, as had many countries.  The Commission also received support from the International Hydrological Programme of the United Nations Educational, Scientific and Cultural Organization (UNESCO).  The Programme had placed a central role in mobilizing hydrogeologists, groundwater administrators, and water lawyers from various regions and in related organizations.  Thus, the articles were politically and scientifically sound.

Continuing, he said the topics under the Commission’s consideration were becoming increasingly interdisciplinary and could no longer be handled only by lawyers and academics of international public law.  The Commission should get outside support as a model for its future work.  The recommendation to annex the articles to a resolution and recommend them to States as guidelines for bilateral or regional arrangements was a reasonable and practical approach that could lead to the elaboration of a convention later.  The question of whether to include oil and natural gas within the topic of shared natural resources should be postponed.  A questionnaire had been circulated to Governments on State practice, specifically with regard to treaties or other arrangements.  The Commission should continue preliminary studies on those resources and refrain from codifying law on the matter, until responses from a sufficient number of Governments had been received.

JOEL HERNANDEZ ( Mexico) said he had attended the Law Commission’s sixtieth anniversary commemorative meeting in Geneva, in May, and had found it very valuable.  Such events, bringing members of the international legal world together, should be held every five years.  Alternatively, the Legal Committee could take part in a dialogue with Commission members in Geneva during its annual meetings.

Turning to the question of transboundary aquifers, he said the development of norms establishing the basis for utilizing transboundary natural resources was central to preventing natural resources from becoming the object of conflicts.  The phrase “equitable and reasonable”, as contained in the articles, was key.  It set out the terms of utilization and, recognizing the non-renewable nature of the resources, set limits on exploitation.  Another welcome aspect of the articles was that the definition of “utilization”, as contained in the commentaries, was not exhaustive, but the emphasis was on satisfying vital human needs.  Setting out the mechanisms for cooperation over such resources was not a threat to the sovereignty of States.  The articles struck a good balance between vital human interests, rights of States and exploitation of resources.

He said the debate on gas and petrol as a shared natural resource should be taken up separately, but it would be helpful for the Commission to take it under consideration, since it would involve the principle of “unitization”.  For now, the course for going forward with the articles on transboundary aquifers was for the Assembly to take note of them and recommend them to States.  Once there was familiarity with the concepts and approach, work could go forward on a convention.

BAIZURA KAMAL (Malaysia), addressing the matter of shared natural resources, said she agreed with the omission of draft article 20 on the relationship between the articles and other conventions and international agreements; the issue of the final form of the draft articles should be left to States, to be negotiated at a later time.  On the elaboration of a convention on the basis of the draft articles, it was not reasonable to assume one could be accomplished in a short period of time without the consensus of States.  Despite the importance of responding to the global water crisis, Malaysia was of the view that, at present, the draft articles would be useful as guidelines for States to enter into appropriate bilateral or regional arrangements to manage their transboundary aquifers; that option would take into account the capacity and resources of States to carry out those arrangements.

EMILIA ALIAS, also from Malaysia, took up the issue of the effects of armed conflicts on treaties.  She said she was appreciative of the inclusive approach taken by the Special Rapporteur and the Law Commission in relation to the comments and suggestions made by delegations on the topic at the Sixth Committee, as well as at other forums, such as the annual session of the Asian-African Legal Consultative Organization.  She said most articles took into account existing State practice, relevant judicial decisions and opinio juris.  In that regard, most of the articles appeared to be settled, while others, such as the list of categories included in the annex for the purpose of draft article 5, would benefit from further study and deliberation.  However, the articles would already provide useful baseline guidance on how States should treat their treaty relations in the event of armed conflict, and they would contribute to certainty in the absence of express “statement of intention in specific treaties”.

She said she welcomed the pragmatic approach in the articles on inter-State treaty relations, encompassing provisionally applied treaties in draft article 1 and the realistic approach taken on the definition of “armed conflict” in draft article 2, especially in covering non-international armed conflicts and military occupation, recognizing their potentially disruptive effects on treaties.  In addition, by reformulating article 8 to incorporate content of article 65 of the Vienna Convention on the Law of Treaties, previously identified gaps appeared to have been addressed.  The reformulation of article 10 seemed to address previous concerns on the clarity of the “separability provision”.

PILAR ESCOBAR ( El Salvador), on the issue of natural resources, said the draft articles were the outcome of painstaking work by the Special Rapporteur.  They would help govern the preservation and worth of groundwater, an indispensable resource for human life.  The articles were accurate in that they allowed for later consideration of the elaboration of a convention, based on the draft articles, while not losing sight of the importance of the matter to international law.

Turning to the effects of armed conflicts on treaties, she said substantial progress had been made on the question of the termination or suspension of treaties, the resumption of treaties, the separability of provisions and the status of third States.   In particular, in article 4, which had indications on the susceptibility to the termination, withdrawal or suspension of treaties, the wording should be made clearer in Paragraph B so that the listed indications were not exhaustive.  On the list of treaties, she said that was an indicative list, but it was also useful for conflict and non-conflict States, since it could show which categories of treaties should remain in application.

SUSANA RUIZ CERUTTI ( Argentina) said she had been fortunate to attend the two-day event in Geneva for the International Law Commission’s sixtieth anniversary.  It had been a useful meeting between legal advisers and Commission members.  Argentina had organized events to mark the sixtieth anniversary, including the holding of a seminar on transboundary aquifers and an event that had featured the Commission’s work over the years.

On shared natural resources, she said the articles contained the main elements of a legal regime for transboundary aquifers that established general principles and norms referring to the use, protection, preservation and management of aquifers and aquifer systems in a clear, objective and balanced manner with useful, illustrative comments.  They should be circulated, and a convention should be considered later.  The inclusion in article 3 of the principle of a State’s sovereignty over the portion of an aquifer located on its territory was welcome in confirming that aquifers belonged to States, notwithstanding obligations to cooperate for rational use and prevention.  The inclusion of article 12 concerning pollution was crucial, although a “precautionary principle” would have been better than a “precautionary approach”.  However, as the Chairman of the Commission had affirmed yesterday in his address, both terms led to similar outcomes when applied in good faith.

On the effects of armed conflicts on treaties, she said a study on State practice should be based on consultations with Governments.  When such practice involved two or more States, drawing up observations on such practice could be considered useful only when endorsed by all concerned States.  That was the only way to achieve impartiality regarding the information.  Also, in examining the effects of armed conflicts on the termination or suspension of treaties, it was pertinent to establish which obligations remained in force.  That was a separate question from the one in which the factual or legal situations of parties to a treaty at the time of signing made the treaty not susceptible to being affected by armed conflict.  Applying the principle of good faith resulted in the recognition that such situations could not, in any way, be affected by an armed conflict.  For example, the recognition of a dispute by a State that was party to a dispute could not, in any way, be affected by armed conflict.  The continued legal force of treaties was a fundamental principle established in article 3.

REBEKAH HAMED (Australia), observing that her country obviously did not share aquifers with other countries, said that while she supported the development of a cooperative framework for proper management of transboundary aquifers, it was a question for concerned States to decide whether that was best accomplished through a global instrument, or through context-specific regional and local agreements.  However the decision was reached, the subject should be treated separately from the consideration of shared oil and gas sources.  Those resources were not suited to a “one-size-fits-all” solution, such as an international treaty.

She said the codification and progressive development of general principles of international law should be approached with caution, when fundamental bilateral interests were concerned.  Management and exploitation of shared oil and gas reserves were essentially the concern of States involved, who were best suited to negotiate agreements reflecting sovereign rights.  Australia had successfully negotiated such agreements, and the complexity of the arrangements bore testimony to the unique challenges involved.  States must have flexibility to create cooperative frameworks on a case-by-case basis.

She said that the question was appropriate for the Commission’s consideration was questionable, but if the Commission did proceed, it should abstain from considering matters relating to offshore boundary delimitation.  The 1982 Convention on the Law of the Sea had made it clear that maritime delimitation was a matter for States concerned.  Oil and gas resources were often involved in situations where States had yet to permanently resolve maritime claims.  Also, delimitation agreements often contained “unitization” clauses that provided for joint exploitation of deposits straddling agreed boundaries.  The existing bilateral mechanisms were the best way forward.

Finally, she said draft articles on the effect of armed conflict on treaties raised important and challenging issues.  The views on the matter that States had been requested to provide would provide the opportunity to explore the complex range of issues in detail; future progress on the work would be welcome.

ISTVÁN HORVÁTH (Hungary), sharing with the Law Commission its view that its sixtieth anniversary event was a “resounding success”, said he supported organizing a like meeting on a regular basis at least once every five years.  He noted that the Commission had had several major issues on its agenda for many years, the completion of which had been urged by delegations.  Therefore, the inclusion of new topics needed a careful examination, he said, citing the topics of “treaties over time” and “the most-favoured-nation clause”.

On the issue of shared natural resources, he said the text of the draft articles met his expectations;  accordingly, the General Assembly should taken note of them and recommend that concerned States make appropriate bilateral and regional agreements for the proper management of their transboundary aquifers.  The second step -- considering the elaboration of a convention on the matter -- was also important.  He reiterated Hungary’s proposal towards the inclusion of a provision on compensation in article 6, recognizing an obligation not to cause significant harm to other aquifer States and in article 12 to change the term “precautionary approach” to “precautionary principle”.

Regarding article 12 on the effects armed conflicts have on treaties, he said he agreed that the definition of “armed conflict” should also cover the issue of internal armed conflicts, emphasizing their frequency and intensity.  However, using the term “state of war” was “outmoded” in the view of the United Nations Charter and international humanitarian law; it could be replaced with the term “state of belligerency”.

STELLA ORINA ( Kenya) said the Law Commission continued to provide important information on the codification and progressive development of international law.  On shared natural resources, she said the draft articles on the topic formed a basis that would guide States in utilization of shared natural resources.  States were entitled to use water resources in their territory, as long as they did not harm the resources of other States.  Taking note of a two-step approach to the final form of draft articles, she said that took into account the relationship between the draft articles and other agreements and dispute settlement.  A convention should be developed at a later stage to govern use and protection of transboundary water resources.

Regionally, she added, efforts were ongoing to “fast-track” cooperative efforts on the issue of shared water resources.  That was important to socio-economic development in the region and would act as a forum for cooperation and as a “clearing house” to address harm or injury to other States.  Regional efforts would also provide information on planned measures.  She said she appreciated the inclusion of article 16 on technical development towards improving water resource management, noting that sight should not be lost of historical facts and involvement when addressing the issue.

On the effects of armed conflicts on treaties, she said she welcomed the finalization of draft article 4, which reflected the Vienna Convention on the Law of Treaties, asserting that treaties should remain in force with their weight not diminished even during the outbreak of war.

ALAN KESSEL ( Canada), noting that Canada shared an international land boundary with the United States, said the full range of transboundary water issues was exclusively bilateral.  Its bilateral relationship was largely governed by two agreements:  the International Boundary Waters Treaty and the Great Lakes Water Quality Agreement.  Those two agreements interacted principally through the International Joint Commission, a bilateral institution.  Although the aforementioned treaty had no apparent or explicit provisions dealing with groundwater, the Joint Commission had shown concern for groundwater pollution.  In particular, the Great Lakes Agreement was amended to include an additional annex that dealt with pollution to the lakes from contaminated groundwater.

Furthermore, states of the United States and Canadian provinces adjacent to the Great Lakes recently concluded an agreement on diversions of the Great Lakes Basin that included consideration of groundwater use and quality.  Those instruments, institutions and processes formed the basis on which any consideration of other instruments on transboundary water issues had to rest.  As such, Canada would be prepared to support consideration of the draft articles as a set of model principles; however, movement beyond those processes and further progress on transboundary groundwater based on them, either in the form of a model or framework convention, might prove problematic for Canada.

Last year, he said, Canada noted its support for the separation of law on transboundary groundwater from issues on oil and gas, which were essentially bilateral, highly technical and encompassed diverse regional situations.  That matter should, therefore, be left for resolution through negotiation between involved States; the Law Commission did not need to develop universal rules, model agreements or arrangements, or draft articles on the topic.  Canada would be concerned if the Commission broadened the topic to include matters relating to offshore boundary delimitation.  However, it might be beneficial to outline elements, for instance common principles and features, best practices, and lessons learned, that could guide States when negotiating agreements on the partition of oil and gas.

PHANI DASCALOPOULOU-LIVADA (Greece) said the Commission had shown much foresight in having adopted the articles on transboundary aquifers at a time when environmental challenges had acquired unprecedented prominence, and when global warming and scarcity of water resources had been elevated to major issues of international concern.  The articles and their commentaries would provide guidance to lawmakers in elaborating bilateral and regional instruments.  They would also constitute the primary material for the elaboration of a convention on the matter.

Continuing, she said the articles struck the right balance between the sovereign rights of aquifer States and the need to preserve aquifers as an important component of the ecosystem.  In particular, the principles of equitable and reasonable utilization, and cooperation and obligation to not cause significant harm, had been incorporated into valuable provisions in the draft articles.  However, the threshold of “significant harm” was unjustifiably high.  Even so, the articles contributed to a coherent approach to water issues in international law;  the scope of their application, which included recharge and discharge zones of aquifers, took full account of the need for the matter to be “regulated in a holistic manner”.

The decision to omit an article that dealt with the relationship between the articles and other instruments was appropriate, she concluded.  Also, the Commission should not take up the question of shared oil and gas resources; that issue could be linked with questions of maritime delimitation, and the elaboration of rules would be extremely complex.

SUDARSANA NATCHIAPPAN ( India) announced that the Asian-African Legal Consultative Organization would hold a one-day seminar on 2 December, in New Delhi, to mark “Sixty Years of the International Law Commission”.  He said he supported the inclusion of two new topics, “treaties in time” and “the most-favoured-nation clause” in the Commission’s long-term programmes of work as soon as possible.

On the issue of shared natural resources, he said the recognition in article 3 of the sovereignty of the State over the portion of a transboundary aquifer or aquifer system on its territory was welcome, as was the listing in article 5 of factors relevant in determining the equitable and reasonable utilization of the aquifer.  The articles dealt with complex issues, the implications of which were not yet understood, and on which there was, as yet, inadequate State practice.  The decision to leave open for further consideration the form in which the draft articles would be adopted was appropriate.

Turning to the effect of armed conflicts on treaties, he said the importance of the principle of continuity of treaty relations between States in the event of an outbreak of armed conflict, as contained in article 3, warranted emphasis.  The principle of continuity was essential in safeguarding the stability and certainty of treaty relations between States.  Article 5 covered the situation in which armed conflict did not affect a treaty, in which the subject implied that the treaty continued in operation during armed conflict.  While the annex with its indicative listing of such treaties was useful, the listing could not be exhaustive.  Accordingly, it would be more useful for the Commission to enumerate factors that could lead to the conclusion of a treaty or some of its provisions being continued (or being suspended or terminated) in the event of armed conflict.

REMIGIUSZ HENCZEL ( Poland) said the commemorative event held last spring was a “free, constructive and inspiring exchange of views and opinions”, which would be of great value for the future work of the Commission and the Sixth Committee.  He noted the Committee’s impressive results in the finalization of work on the topics of “shared natural resources” and the “effects of armed conflicts on treaties”.  He said both sets of draft articles, together with the exhaustive commentaries on them, were valuable to the process of codification and progressive development of international law.

He said Poland would, however, wish to express further comments on those draft articles after additional comments from Governments were made.  He was not convinced that the scope of the draft articles, in particular article 2, was sufficiently clear to include “internal conflicts”.

Turning to shared natural resources, he said the draft articles on the matter should become treaty obligations in the near future.  The growing importance of protecting water resources for all humanity seemed to be beyond any discussion; the rules elaborated by the Law Commission could well serve that purpose.  Giving those rules the force of treaty obligation would strengthen their possible positive impact on the necessary protection of natural resources, threatened from various sources and directions.  Expanding the scope of the articles to include other shared natural resources, such as oil and gas, might be worth exploring.

DUAN JIELONG ( China) said the draft articles adopted by the Commission established the sovereignty of each aquifer State over the portion of a transboundary aquifer located within its territory.  Relevant principles on protection and utilization of transboundary aquifers were enunciated, including the principles of equitable and reasonable utilization and those of the obligation not to cause significant harm, and generally to cooperate.  The articles were balanced.

In addition, he said, the Commission’s work on the topic was largely the progressive development of international law, “rather than codification of customary international law”.  The provisions, particularly those in connection with the mechanism for international cooperation for joint protection and use of the aquifers, and for strengthening obligations of non-aquifer States, were not based on international practice.  Factors such as variations in aquifer systems and needs of States would bear on the mechanisms for protection and use.  Whether the articles could serve the purpose of developing international law progressively needed to be verified by more State practice.  He said it was worth noting that a major reason for failure to find wider acceptance with the 1977 Convention on the Law of Watercourses lay with the absence of adequate attention being paid to State practice.  States should reflect on how the articles could be put into practice before consideration of a convention began.

He said the articles on effects of armed conflicts on treaties reflected the fundamental principle that an armed conflict did not necessarily terminate or suspend treaty relations.  Scenarios had been envisaged, and indicators set out on the susceptibility of treaties to termination, suspension or withdrawal because of armed conflicts.  They were well-defined and internally coherent.  He said further study should be undertaken with a number of articles, adding that article 2 did not make a distinction between internal conflict and international, either one of which could affect the terms of a treaty.  The annex to article 5 regarding the listing of treaties not affected by armed conflict should be clarified, as should the articles related to notifications and the prohibition of benefits to an aggressor State.

Launch of Audio-Visual Library of International Law

After concluding its meeting, the Committee participated in the launch of the United Nations Audio-Visual Library of International Law, as part of the 1963 United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law.  The unique multimedia resource, consisting of a Lecture Series, Historic Archives and Research Library is to be available, free of charge, to all institutions and individuals around the world over the Internet.

Addressing guests and the global audience through the webcast, Mahnoush Arsanjani, Director of the Codification Division of the Office of Legal Affairs, said technology was opening opportunities of “particular importance with regard to enlightenment and access to the world’s accumulated wisdom”.  International law was the ultimate property of the entire human community, a part of humanity’s common heritage, and it had now become relevant to every major human endeavour and even the survival of the species.  The Library was aimed at helping the Programme of Assistance meet the demand for international law training.

Taking in the launch ceremony, Hisashi Owada, of the International Court of Justice, said the initiative would be instrumental in promoting the rule of law at the worldwide level.  In the sixtieth anniversary year of the International Law Commission, international law was no longer the exclusive domain of international courts and institutions.  Its issues were increasingly being considered by national and regional courts.

Launching the initiative on behalf of the Secretary-General, Patricia O’Brien, United Nations Under-Secretary-General and Legal Counsel, said the Codification Division had exhibited extraordinary vision, initiative and dedication in creating the Library that provided an unprecedented capacity for global training in international law for the twenty-first century, when international law was key to a future based on peace, justice, respect and rule of law.  The project had been funded entirely by voluntary contributions.  The Under-Secretary-General for Communications and Public Information, Kiyotaka Akasaka, had provided invaluable assistance in a collaboration that would continue.

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For information media • not an official record
For information media. Not an official record.