Praising Draft Texts on Transboundary Harm, Aquifers, Allocation of Loss, Delegates Disagree over Final Forms, Seek Further Examination

22 October 2013
GA/L/3464

Praising Draft Texts on Transboundary Harm, Aquifers, Allocation of Loss, Delegates Disagree over Final Forms, Seek Further Examination

22 October 2013
General Assembly
GA/L/3464
Department of Public Information • News and Media Division • New York

Sixty-eighth General Assembly

Sixth Committee

16th Meeting (AM)

Praising Draft Texts on Transboundary Harm, Aquifers, Allocation of Loss,

 

Delegates Disagree over Final Forms, Seek Further Examination

 

The future form of the draft articles on transboundary harm from hazardous activities, the draft principles on allocation of loss in the case of such harm, and the draft articles on the law of transboundary aquifers remained in question as the Sixth Committee (Legal) took up those matters today.

Many delegations held that it was premature to codify the draft articles on transboundary harm and the principles on allocation of loss, recommending that they retain their current form.  Both documents went beyond current international law and practice, the United States’ representative said.  They clearly were intended as resources to encourage action in specific contexts, rather than to form the basis of a global treaty.

At the same time, several delegates suggested that both the articles and the principles be combined into a single instrument or convention, with Chile’s representative stating that prevention, as addressed in the articles, and the allocation of loss, as addressed in the principles, were two sides of the same coin.

Even those preferring to preserve the articles and principles as they were highlighted the importance of their preventive measures.  India’s representative, who had praised the flexibility of their current form, stated that the thrust of those measures could be seen in the broader context of the right to development and the obligation to protect the environment.

That obligation to protect the environment was a significant issue in the Pacific region, said Tonga’s representative.  As custodians of the ocean and its living and non-living resources, the Pacific small island developing States had been harmed by greenhouse gas emissions from the developed world.  That was a global issue, and responsibility for the harm should be allocated accordingly.

Transborder harm must also be avoided in the shared use of aquifers among States, Qatar’s delegate stressed, as the Committee, turning to the next agenda item, took up the law of transboundary aquifers.

Japan’s representative said that, due to the issue’s importance and urgency, his delegation was proposing that a discussion be held on a draft resolution.  Those meetings would not aim towards negotiating a possible convention, he stressed, as the draft resolution was crafted with consideration of every possible concern from Member States.

Speaking for the Arab Group, Bahrain’s representative called for more scientific information before further discussions on a possible convention occurred, a position heard from several delegations.  Further, although the International Law Commission’s efforts had resulted in a flexible set of articles, he said that when addressing bilateral arrangements on shared aquifers, hydrological and climate conditions must be taken into consideration, as well as the social and cultural situation of the countries involved.

Echoing that sentiment, Israel’s delegate emphasized that the unique conditions of parties to a negotiation should be considered.  Nonetheless, he underscored that by combining technologies, innovation and goodwill, water scarcity could be transformed from a catalyst for conflict to a key for cooperation and dialogue.

Also speaking today were representatives of New Zealand (also for Canada and Australia), South Africa, Portugal, Micronesia, Viet Nam, Malaysia, United Kingdom, Russian Federation, Uruguay (also for Argentina, Brazil and Paraguay), Guatemala, Peru, Ukraine and Italy.

An observer for the State of Palestine also spoke.

The Sixth Committee will next convene on Monday, 28 October, at 10 a.m. to begin its debate on the report of the International Law Commission.

Background

The Sixth Committee (Legal) met today to take up the matter of transboundary harm from hazardous activities and allocation of loss in the case of such harm.  Before it were two reports of the Secretary-General on the topic: Consideration of transboundary harm from hazardous activities and allocation of loss in the case of such harm (document A/68/170) and Compilation of decisions of international courts, tribunals and other bodies (document A/68/94).

It would also consider the report of the Secretary-General on The law of transboundary aquifers (document A/68/172).

Statements on Transboundary Harm

THARRON MCIVOR (New Zealand), speaking also for Canada and Australia, said that the serious risk associated with transboundary harm from hazardous activities reinforced the importance of developing and maintaining a coherent and fair international framework.  The best way to ensure the progressive development of international law, in that context, was for the draft articles on prevention and the principles on the allocation of loss to remain in their present form.

They established clear and comprehensive standards that every State wishing to be in good standing in the international community would look to follow, he said.  An attempt to turn them into a convention would take time, thus slowing the process of their consolidation as the relevant international standards.  He further pointed out that it might be many years before a resultant convention would enter into force.

THEMBILE JOYINI ( South Africa) said the draft articles and the principles already served as authoritative guidance for States and judicial bodies, and already had some influence in international law.  They had been referred to in a number of cases and in arbitral awards and decisions of the International Tribunal for the Law of the Sea.  Thus, the Committee’s debate should focus on the form that the draft articles and the draft principles should take, as there was a need to have a unified draft covering both the prevention and the liability aspects.

Recalling the International Law Commission’s recommendation that an international convention based on the draft articles on prevention be adopted, and that they be endorsed in a resolution, he said the texts created a coherent system whereby tribunals and the International Court of Justice could make decisions and judgments.  The elaboration of a convention would contribute meaningfully to the progressive development of international law and its codification, and revitalise the work of the Sixth Committee.

MARK SIMONOFF ( United States), praising the draft articles and the principles, said that both documents went beyond the present state of international law and practice.  They were clearly innovative and aspirational in character rather than descriptive of current law or State practice.  Further, both were designed as resources to encourage national and international action in specific contexts, rather than to form the basis of a global treaty.  Therefore, he expressed support for retaining them in their current form.

MATEUS KOWALSKI ( Portugal) said the draft texts’ adoption by the General Assembly was a positive step towards measures to minimizing harm and loss from incidents involving hazardous activities, as well as towards measures allowing prompt and adequate compensation to victims of transboundary harm.  Global objectives, including prevention, migration and compensation, should continue to be pursued.  However, the Committee was still far from the Commission’s recommendations for the elaboration of a convention on the prevention of transboundary harm and an endorsement by the General Assembly of the draft principles on the liability aspects.  The topic should be analyzed under the light of its own history and the purposes of codification and progressive development of harmonious and coherent international law.

Further, pointing out that the prevention of transboundary harm and international liability in the case of loss from such harm were part of the same topic, he said that they should be dealt with together with equal legal nature and enforceability.  He expressed hope that in the future there would be a single convention on those two concepts where the responsibility of the State on the matter was adequately established, and a real system of compensation was put in place.  However, for the time being it would be a significant step forward to achieve a whole set of draft articles or draft principles addressing prevention and allocation of loss, but always with an international convention on the horizon.

JANE J. CHIGIYAL ( Micronesia) expressed support for the adoption of a binding international convention that incorporated the two documents and included a mechanism to aid developing States to deal with the consequences of harm.  At minimum, if the elaboration of a convention could not be endorsed, States must be encouraged to put the draft articles and principles to greater use.  Noting that Micronesia had developed an intricate system of consultation, cooperation and co-management among its many tiny islands that represented, at the local level, the prevention rule in action, she stressed that climate change was an area in which prevention played an important role.  “Our very existence is threatened by the harmful effects of excessive greenhouse gas emissions […],” she said.  Every State must assess the degree to which its activities produced harmful emissions.  Due diligence for the prevention of transboundary harm was embodied in international law.  No exceptions could be made for harm arising from activities contributing to climate change.

T. SUKA MANGISI ( Tonga) said the issue of transboundary harm was of critical importance to his country and its Pacific small island developing State neighbours.  The oceanic environment was the ancient pathway connecting maritime peoples of the Pacific, and was the foundation of their economic, social and cultural sustainability.  The risk of harm to the oceanic environment from human activity carried with it the potential for devastating consequences.  As custodians of the ocean and its living and non-living resources, his country and its neighbours had the responsibility to ensure that activity affecting the ocean was governed in a way that prevented such harm and ensured adequate remedy in the event such harm did occur.  That was an issue on which “the international community must be proactive, not reactive”, he said.

Tonga, he continued, was playing a leading role in the development of a regional legislative and regulatory framework for deep seabed mining activity.  To mitigate the effects of climate change, a national action plan aimed to promote good governance and enhance technical capability and community resilience to climate change impacts and disasters.  Nonetheless, he stressed that “we in the Pacific cannot remedy this harm alone, and nor should we have to”.  Harm caused by greenhouse gas emissions in the developed world had transcended his region’s land, ocean and airspace boundaries in the most fundamental way, posing an immediate threat to survival in the Pacific and elsewhere.  That was a global issue, and responsibility for harm should be allocated accordingly.  The Commission’s draft articles and principles already constituted authoritative guidance for State and judicial bodies, and countries should be guided by the articles and principles when negotiating agreements, as well as in taking domestic measures.

MOHAMMED ADEEB ( India) said that the draft articles provided flexibility to States.  The thrust of their prevention aspect could be seen in the broader context of the right to development and the obligation to protect the environment.  He addressed a number of specific measures, noting, among them, that while the obligation to notify and consult on mitigating the effects of transboundary harm were recognized in international instruments governing hazardous activities, States had the power, under domestic law, to require response measures of the operator towards mitigation or elimination of damage.  Overall, the documents could be a useful guide to States in their efforts to adopt legislative, regulatory and administrative measures, incorporating relevant principles in their domestic laws and policies.

PHAM THI THU HUONG (Viet Nam), recognizing that the draft articles were valuable in providing guidance to States in the prevention of transboundary harm, expressed support for the elaboration of a convention in order to set up a legal framework on the subject.  Such an instrument should also cover the liability aspect, including the allocation of loss in the case of such harm since the two issues were inter-related.  Noting that such a comprehensive elaboration might take longer, she said that for the time being her delegation welcomed comments on relevant State practice relating to the two topics, as well discussion with other States about their work in that regard.

SARAH KHALILAH ABDUL RAHMAN ( Malaysia), reiterating her country’s position during the General Assembly’ssixty-fifth session, advocated for the retention of the draft articles and principles in their current and recommendatory form, pending further study of developments in State practice.  She expressed concern that the scope and threshold of the term “significant” in draft articles 1 to 3 required further clarification and needed a more precise definition.  In relation to draft article 9, she said that without a compliance mechanism, it remained unclear how States would comply with the proposed mandatory requirement for preventive consultations.  Establishing cooperative networks and joint response measures at the regional level was key to achieving workable solutions that would prevent transboundary harm from hazardous activities.

RUTH TOMLINSON (United Kingdom), recalling her country’s comments on the form of the articles in 2007 and 2010, said that there had not been any developments in the past three years which would necessitate a change in position.  Thus, there was no need for a convention on the prevention of transboundary harm or the allocation of loss.  Those subjects were already covered by a number of binding sector specific and regional instruments, including the Union’s Environmental Impact and Liability Directives, which largely reflected the texts.  Questioning the benefit of adopting a convention that assumed a one-size-fits-all for all categories of transboundary harm, she said there was an obvious advantage in subject-specific initiatives tailored to address different activities and potential harms.  In that regard, a convention on the aforementioned topics was neither necessary nor desirable.  The articles and principles should remain as non-binding guidance.

JOSE ANTONIO GONZALEZ ( Chile), noting that draft article 1 provided a definition of transboundary harm from unprohibited activities and that draft principle 8 recommended States to enact national laws in accordance with international instruments, said that prevention, as addressed in those articles, and the allocation of loss principles were two sides of the same coin.  A single instrument was needed to encompass both so that the two sets of regulations, now dealt with separately, would be at the same normative level.  To that end, he favoured the elaboration of a convention containing both the articles and the principles.  Recognizing that Member States differed on the matter, he suggested that, in the interim, a working group be established to consider a convention and the harmonizing of the texts into a single instrument.

OHAD ZEMET ( Israel) said the current subject was one of the most important aspects of international environmental law.  The articles and the principles represented the culmination of extensive work by the Commission.  They should remain in their current recommendatory form.  There was no added benefit in attempting to transform the principles and articles into the more binding form of a convention.  He supported retaining those products in their current form.

LEONID CHENKO ( Russian Federation) highlighted the significant and progressive nature taken by the International Law Commission in finding a good balance between codification and international law.  Despite consensus on the outcome of the articles, their importance could not be overstated as they provided a resource for States to harmonize their activities.  It was premature to elaborate a convention, but it should be considered for the future.  To that end, the status of bilateral agreements between States with regard to the articles and principles, particularly those that were progressive in nature, should be considered.

Statements on the Law of Transboundary Aquifers

JOSE LUIS CANCELA (Uruguay), speaking also for Argentina, Brazil, and Paraguay, said that the draft articles on the law of transboundary aquifers were the first systematic formulation of international law at the global level applicable to such aquifers.  They had, with clarity, objectivity and in a balanced manner, defined a set of principles and basic rules for harmonizing the use of underground water reservoirs intersected by international boundaries, and had indicated cooperation mechanisms for the responsible management of aquifers by neighbouring States, in order to avoid disputes and preserve the vital freshwater.

He then recalled the Agreement on the Guarani Aquifer, which aimed to strengthen cooperation and expand the scope of concerted action for the conservation and sustainable use of transboundary water resources of the Guarani Aquifer System, located in all four countries’ territories.  Recognizing that several delegations had deemed the elaboration of a draft convention based on the draft articles premature, he expressed support for the adoption of the draft articles in the form of a declaration of principles on the law of transboundary aquifers, to be considered for bilateral or regional agreements of adequate transboundary aquifer management.  In that regard, he supported the draft submitted by Japan.

MR. SHUBBER ( Bahrain), speaking for the Arab Group, emphasized the importance of transboundary aquifers for its members, especially because of the lack of water in most of its member States.  Although the Commission’s efforts had resulted in a flexible set of articles, more scientific information was needed on transboundary aquifers and on specific State practices.  To negotiate bilateral arrangements on shared aquifers, hydrological and climate conditions must be taken into consideration, as well as the social and cultural situation of the countries involved.

Turning to the Secretary-General’ report, he noted the observation that the law’s current title “transboundary aquifers” should be replaced with “shared aquifers”.  Commenting, among others, on specific articles, he said that an article was needed on the settlement of disputes; article 18 should include rules relating to armed conflict and should stress the illegality of violating rules governing the use of aquifers.  As to the final form the draft articles would take, he said that it should maintain historically acquired rights, and that the law of shared aquifers must not apply to projects already undertaken.

TAKERO AOYAMA ( Japan), acknowledging the two years since the Committee last held a meeting on the topic, said that the necessity of establishing a legal framework in the field of transboundary aquifers had significantly increased since that time.  The draft articles provided a valuable platform for countries to establish bilateral or regional legal frameworks to manage their particular aquifer systems.  They reflected a wide range of State practices, were well supported by scientific evidence through cooperation with the United Nations Educational, Scientific and Cultural Organization (UNESCO), and laid out the essential elements of a possible legal framework.

He said that, due to the issue’s importance and urgency, his delegation was proposing that a discussion be held on the basis of the draft resolution on the matter.  That resolution had been drafted to seek a wide range of support from Member States.  Because delegations had certain concerns with the draft, his delegation did not intend to hold meetings on negotiations for a possible convention.  Further, the passing of the draft resolution would not mean the immediate establishment of legally binding instruments.  Noting that the draft resolution was crafted with consideration of every possible concern from Member States, he expressed hope that it would be positively viewed by delegations.

MR. AL-HAJRI ( Qatar), associating his delegation with the position of the Arab Group, said that it was vital to protect transnational aquifers.  A balance must be struck for countries to use aquifers while causing no harm to others.  The articles of the International Law Commission required further work to achieve a binding instrument, and required further scientific information to that end.  Management of water resources was a long-term process.  Countries wishing to implement activities with regard to aquifers on their lands should put them aside until an agreement could be reached by affected States.

TED STRICKLAND ( United States) said that specific aquifer conditions and State practices varied widely, and many aspects of the draft articles clearly went beyond current law and practice.  Thus, context-specific arrangements provided the best way to address pressures on transboundary ground waters in aquifers, as opposed to refashioning the draft articles into a global framework treaty or into principles.  States concerned should consider those draft articles when negotiating appropriate bilateral or regional arrangements for transboundary aquifers’ proper management.  Using the articles as a resource in draft form seemed the best way of ensuring that the texts remained a useful resource for States in all circumstances.

It was doubtful, he went on to say, that, if fashioned into a global convention or principles, they would garner sufficient support.  In addition, the texts seemed to cover some waters that were already within the scope of the 1997 Watercourses Convention; the existence of two overlapping framework conventions could lead to confusion.  Instead, he supported commending the draft articles to the attention of Governments, and encouraged States to take into account their provisions when making appropriate bilateral or regional agreements, or arrangements for the proper management of their transboundary aquifers.

ANA CRISTINA RODRIGUEZ PINEDA ( Guatemala), pointing out that Guatemala was an upstream water basin country, said that 74 per cent of its territory was comprised of river basins with water flowing naturally towards other countries.  Guatemala participated in bilateral and multilateral measures that would not compromise its rights to waters on its territory.  It was vital to avoid imposing restrictions on the use of a sovereign State’s natural resources.  Further, noting the cost to countries such as hers of sharing waters, she said that downstream water basin countries should pay for environmental services.  Turning to the articles under discussion, she said more scientific information was needed before determining their final form. The issue of water must be dealt with in specific contexts.  She proposed revisiting the issue every three years.

MATEUS KOWALSKI ( Portugal) said the draft articles served as a good general legal basis for the sustainable governance of transboundary aquifers, and should evolve into an international convention.  Such a convention would systematize and formulate common principles more precisely and, consequently, serve as a legal framework for the development of specific regimes.  Further, it would neither go beyond bilateral or regional agreements nor restrict the capacity of States to establish elaborated specific regimes suitable to their specific contexts.  In that regard, the adoption of the draft articles as guiding principles was a consensual solution and a necessary step forward, with the view of a convention on the horizon.

FARHANI AHMAD TAJUDDIN ( Malaysia) said that the decision on the final form of the draft articles should be made at a later stage when there was sufficient evidence of State practice.  Such practice would need to reflect the principles and obligations in the draft articles, as well as their value in enhancing existing bilateral and regional arrangements.  The articles, therefore, should remain in their current draft form.  That would enable the texts to continue serving as a valuable reference for States in further developing their legal framework for the proper management of transboundary aquifers, and for cooperative arrangements with their neighbouring or regional partners.

GLAUCO SEOANE ( Peru), noting that transboundary aquifers were on his country’s five borders, said the articles proposed by the Commission had contained general principles useful for the progressive development and codification of international law.  Those principles were an important step in the establishment of a legal framework for the sustainable development of water resources.  However, prior to adopting a binding decision on the draft articles, there was a need to analyze their implications, as well as the practices of States.  That view was in line with the position already expressed by other delegations.  Given the scope of the statements, he said his country would spare no effort in seeking a constructive solution, with a view to the General Assembly’s adoption of a decision on the item, during the current session.

JOSE ANTONIO GONZALEZ ( Chile) recalling that his country had concluded no bilateral agreements on transboundary aquifers, said that further scientific study was needed to provide a foundation to elaborate its legal aspects.  The draft articles could serve as guidelines.  Discussion should continue towards an agreement based on international law, including, among other things, the right of States to use aquifers on their territories, the sharing of resources and the need to cause no harm to other States or the environment.  The discussion should be based on scientifically valid information.

VOLODYMYR PUZYRKO (Ukraine), noting that his country was not party to any bilateral or regional agreements concerning transboundary aquifers, said it had no objection to initiating a negotiation process to conclude a convention on the matter.  However, he pointed out that, among other things, although draft article 6 concerned the “obligation not to cause significant harm”, the concept of harm was not defined.  The drafting of a convention would require such a definition, separating the concepts of “harm caused by aquifer depletion” and “harm caused by aquifer pollution”.  Further, the criteria for what constituted significant or insignificant harm would also need to be defined.

OHAD ZEMET ( Israel) said that by combining technologies, innovation and goodwill, water scarcity could be transformed from a catalyst for conflict to a key for cooperation and dialogue.  In that regard, the draft articles delineated guidelines that States could consider when negotiating bilateral or regional agreements.  Even so, it was not necessarily appropriate to codify them formally as every case differed when it came to cooperation among States.  The geophysical nature of the area, the relationship between the States in question, and the economic, cultural and political context must all be taken into account.  The most appropriate approach to the issue would be through bilateral or regional projects and arrangements.  The international community should continue to learn from States’ best practices, analyze case studies, discuss challenges, and deepen scientific research and cooperation in the field.

MR. LEONID CHENKO ( Russian Federation) commended the draft articles and noted the importance of the provisions that enshrined State cooperation and joint mechanisms.  While it was possible for the texts to become a legally binding instrument in the future, he said it would be premature at the current stage to talk about drafting a convention.  In that regard, it would seem appropriate to continue the approach set out by the General Assembly in relevant resolutions, recommending that States take the articles into account in their practice, and engage in appropriate bilateral and multilateral agreements.  The question of a convention could be considered at a later date, while still taking into account the already existing agreements on aquifers.

SALVATORE ZAPPALÀ ( Italy) welcomed the fact that several States had resorted to the articles in their treaty relationships.  He noted that the Draft Model Provisions on Transboundary Groundwaters adopted by parties to the United Nations Economic Commission for Europe Convention (UNECE) on the Protection and Use of Transboundary Watercourses and International Lakes in 2012 had been an important case of application at the multilateral level of the principles enshrined in the draft articles.  He also pointed out that the entry into force on 13 February this year of the amendments to that Convention allowed for accession to the Convention by Member States who were not parties to UNECE.

VISHNU DUTT SHARMA ( India) said that, while the draft articles contained a number of useful provisions, there was still a lack of scientific knowledge on the subject.  He highlighted the need for further study as well as technical assistance for the protection and management of aquifers.  For that reason, it was not the right time to delve into a legally binding instrument, such as a convention.  The draft articles, in their present form, could serve as a useful guide to conclude bilateral or regional arrangement on the subject.   He expressed appreciation for Japan’s introduction of a resolution related to the subject, and looked forward to its further discussion.

YOUSEF N. ZEIDAN, Permanent Observer Mission of the State of Palestine, aligning his delegation with the Arab Group, emphasized that water was one of the core final status issues that must be justly and comprehensively resolved for a lasting resolution of the Israeli-Palestinian conflict.  “For the State of Palestine, the scarcity of water has been compounded by the exploitation and diversion of water resources by Israel […], in addition to its contamination and destruction of water and sanitation systems throughout its 46-year occupation […],” he said.  The wall and settlement activity had also entailed the seizure of and obstruction of access to aquifers, further reducing the water supply available to the Palestinian civilian population.  Turning to the draft articles, he said that they should not be considered for a convention, but used as a voluntary guide for bilateral or regional agreements.

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