ASSEMBLY’S LEGAL COMMITTEE COMMENDS INTERNATIONAL COURT OF JUSTICE FOR CONTINUED ROLE IN DETERMINING RULE OF GLOBAL LAW

Sixtieth General Assembly

Sixth Committee

15^th & 16^th Meetings (AM & PM)

ASSEMBLY’S LEGAL COMMITTEE COMMENDS INTERNATIONAL COURT OF JUSTICE

FOR CONTINUED ROLE IN DETERMINING RULE OF GLOBAL LAW

Court President Speaks of Acclaim for Work on Peaceful Settlement

Of Disputes; Committee Resumes Debate on Topics from Law Commission Report

(Issued on 31 October 2005.)

The Sixth Committee (Legal) this morning paid tribute to the contributions of the International Court of Justice to international law and the settlement of disputes between States.

Welcoming the President of the Court before his address to the Committee, the Chairman of the Sixth Committee, Juan Antonio Yañez-Barnuevo ( Spain), said the Court’s decisions were invaluable for determining rules of international law.  Noting that it would celebrate its sixtieth anniversary next year, he congratulated the Court on its achievements in the peaceful settlement of disputes among States.  He recalled that the Outcome Document of the 2005 World Summit had also underscored the importance of the Court, and had recognized its important role.

In his address, Judge Shi Jiuyong, President of the International Court of Justice, said the Court had another year of judiciary efficiency, rendering a final judgment in 10 cases, including all of the eight which concerned the Legality of the Use of Force.  As a result of its intensive work, the total number of 21 cases on its docket had been reduced to 11 at the end of the period under review.  One new case had since been filed.  At the time that its popularity was thriving and its role in peacefully settling international disputes was acclaimed, he said, it was crucial that the exact nature of the Court’s work and its contribution were fully understood by all.

In another action, the Sixth Committee at two meetings today continued its debate on “Shared natural resources”, “Unilateral acts of States” and “Reservations to treaties” which were among topics considered by the International Law Commission in Geneva this year.

Also, the representative of the Netherlands introduced a draft resolution by which the General Assembly would approve observer status for The Hague Conference on Private International Law at its sessions.

As the Committee continued its discussion of the International Law Commission topics under consideration, some of the speakers from countries that shared transboundary aquifers said that it was important for the draft articles to explicitly recognize the principle of permanent sovereignty over natural resources.  Delegates also welcomed the precedence that was appropriately given to bilateral and regional arrangements in the draft articles.

Other delegates, in noting the limited relevancy of the issue of transboundary aquifers to many States, expressed an interest in seeing the Commission soon move on to a discussion of such other shared natural resources as oil and gas.

Statements in the morning debate on the Law Commission report were made by the representatives of United States, Mexico, Republic of Korea, Brazil and China.

Speaking on the report during the afternoon meeting of the Committee were the representatives of Hungary, Russian Federation, Italy, Poland, Portugal, Chile, Paraguay, Guatemala, Israel, Greece, Belgium, Kenya, Romania, Uruguay and Canada.

The Committee will next meet on Monday, 31 October, at 11:30 a.m. to continue its discussion of the report of the International Law Commission.

Background

The Sixth Committee (Legal) met this morning to continue its consideration of the following topics, among others, on the agenda of the fifty-seventh session of the International Law Commission, namely, “Shared natural resources”, “Unilateral acts of States” and “Reservations to treaties”.  The Committee will also hear the customary address by the President of the International Court of Justice, SHI JIUYONG, of China.  (For further information on the report of the International Law Commission, see Press Release GA/L/3282 of 24 October.)

The Committee was expected to hold an interactive dialogue following the adjournment of its afternoon meeting which will focus on “Responsibility of international organizations”, one of the topics it considered at the start of its debate on the Commission’s report last Monday.

Statements on Report of Law Commission

CAROLYN WILLSON ( United States) said the topic of shared natural resources was undoubtedly a complex one, as there was still much to learn about transboundary aquifers in general, and specific aquifer conditions and State practice varied widely.  Context-specific arrangements were the best way to address pressures on transboundary groundwaters.  Rather than producing another convention, the Commission should develop a list of considerations or guidelines that States could use in negotiating bilateral or regional arrangements.  Neither codification nor declaratory articles would be appropriate.  She also urged the Commission to avoid taking on more controversial subtopics, such as oil and gas.

On unilateral acts of States, she noted that disagreement among Commission members had slowed progress on the topic, and raised doubts about the usefulness of further study.  She did not believe that it was an area amenable to codification and progressive development.

She responded to the Commission’s request for State comments on the effect of an objection to a reservation to a treaty.  She said that the United States did not agree with the position that if a State had made a prohibited reservation, one incompatible with the object and purpose of a treaty, it might be bound by the treaty without the benefit of the reservation, should another party properly object to the reservation on that basis.  To suggest that a State could be bound to a treaty without the benefit of a reservation it had made would be in direct conflict with the basic principle of consent.

Address by President of International Court of Justice

JUAN ANTONIO YANEZ-BARNUEVO ( Spain), Chairman of the Sixth Committee, welcomed the President of the International Court of Justice, and said the visit, the third by the current President, was an honour and privilege.  The visit to the Committee had become part of a long tradition, which should be preserved.  He said the Committee was aware that its move was closely followed by the World Court President just as Committee members were keen observers of the Court’s activities, and greatly admired its work.  He said the Court’s decisions were invaluable as a means for determining rules of international law, and noted that next year the Court would celebrate its sixtieth anniversary.  He congratulated the Court on its achievements in the peaceful settlement of disputes among States.  He recalled that the Outcome Document of the 2005 World Summit had underscored the importance of the Court, and had recognized its important role.

JUDGE SHI JIUYONG, President of the International Court of Justice, in his address, said the Court had had another year of judiciary efficiency.  It rendered a final judgment in 10 cases (the judgments in all of the eight cases concerning the Legality of the Use of Force having been rendered simultaneously).  It also held oral hearings in three cases.  As a result of its intensive work, he said the total number of 21 cases on its docket had fallen to 11 at the end of the period under review.  Since the finalization of its report, one new case had been filed with the Court, bringing the total number on its docket to 12.

He said it was crucial at the time that the Court’s popularity was thriving, and its role in peacefully settling international disputes was acclaimed, that the exact nature of the Court’s work and its contribution were fully understood by all.  He explained the internal functioning of the Court, its organization and working methods.

He said the Court’s budget for the 2004-2005 biennium was only around $35 million (revised appropriation), representing barely 1 per cent of the total budget of the United Nations for the same period, which was about $3.5 billion (revised appropriation).  He said an even more telling comparison could be struck with the International Criminal Tribunal for the former Yugoslavia whose budget for the same period amounted to $330 million (after re-costing).  That was nearly 10 times the budget of the Court.  He said the Court had made very modest budgetary requests for the 2006-2007 biennium, and hoped that the General Assembly would approve.

Despite its limited size and resources, he said, the International Court of Justice had established work procedures and methods that allowed it to accomplish its work efficiently and in a timely manner.  Criticisms of the length of the Court’s procedures were not justified; the greatest part of the time taken to decide a case depended not on the Court’s work, but on the work and the will of the parties to a case.  Delays in proceedings were often the result of procedural steps taken by the parties.

In recent years, he said, the Court had promulgated several practice directions to accelerate contentious proceedings.  For instance, the Court now requested the parties to a case to reduce the number and length of their written pleadings and annexed documents.  It had also fixed standard time limits for the submission of documents in incidental proceedings, and had laid down strict rules on the filing of new documents after the closure of the written proceedings.

He went on to describe the part of the proceedings which was entirely the responsibility of members of the Court.  The bilingual nature of the Court, he said, offered a guarantee of quality, which was probably unattained in any other institution.  The work of the Court’s Registry was in that sense absolutely vital.

He then described how the Court’s 15 members drafted judgments and the stages that they went through; it was a “complicated, arduous and very meticulous exercise”.  The drafting of the judgment unfolded over a period of from three months in some cases to a maximum of eight or nine months in others.  The Court’s current procedures and working methods, on the eve of its sixtieth anniversary, had proved efficient.  The Court had, however, undertaken a thorough review of its working methods in recent years and, as a result, it had introduced measures to enhance its internal functioning, and it had encouraged greater compliance by parties with previous measures aimed at accelerating the procedure in contentious proceedings.  The Court had recently modernized and reorganized its Registry.  The Court would continue to perform the role assigned to it to the best of its ability.

In discussion that followed the Court President’s presentation, the representative of Mexico observed that when agreement was reached, the Court “did the impossible” to satisfy the parties.  He asked that Spanish be added to the Court’s two official languages (English and French), and said efforts should also be made to have the Court’s rulings and decisions published in other languages, including Spanish.

The representative of the Congo asked for clarification about what happened if the Court’s judgments were not implemented by a party.  He referred to a case involving Nigeria and the Cameroon, which the Court had adjudicated.

Responding, the President of the Court said the Court’s two official languages had been a tradition since it was established after the Second World War.  To change it would require an amendment to the Court’s Statute, and it would have budgetary implications.  He pointed out that the United Nations Secretariat occasionally disseminated the Court’s decisions and rulings in the United Nations official languages, which included Spanish.  He hoped that would satisfy the Mexican delegate.

In response to the representative of the Congo, he said implementation of the Court’s judgments had, to date, been satisfactory.  They were built on the consent of the parties, and the parties had to implement them.  With regard to the case of Nigeria and Cameroon over an island, he recalled that the United Nations Secretary-General, following a meeting with the Heads of State of the two countries, had established a demarcation commission to implement the Court’s judgment.  At his meeting with the Secretary-General yesterday, he added, he had been assured that the work of the commission was still going on.  The Court had no enforcement mechanism; if a judgment was not implemented by one party, the other could request Security Council assistance to have it carried out.  He cited a case involving Libya and Chad, which had eventually been resolved by the Security Council, which had Libya withdraw its troops from Chad.

In answer to a question from the representative of Egypt, he said the Court’s procedures could still be improved.

Statements on Law Commission Report

JOEL HERNANDEZ ( Mexico) said reservations to treaties had the purpose of excluding or modifying certain aspects of the provisions of a treaty.  The validity or invalidity of reservations constituted a central element of determining the legal effects of reservations.  It was therefore necessary to clarify the scope of the norms through an in-depth study of existing law and the interpretation and practice of States.  He agreed with the Special Rapporteur concerning the formulation of reservations covered in article 19.  Any study would need to resolve questions about exceptions.  One of the most enigmatic issues was over the validity of reservations.  Mexico had a particular interest in the study of the legal consequences provoked by an invalid reservation.  The Vienna Convention on Treaties was silent on the matter.

The idea that States could determine the invalidity of a reservation reflected commonly accepted international legal norms, he continued.  However, those reservations could give rise to controversy among the parties to a treaty.  He agreed with the certain guidelines in the draft articles, since those articles showed that the validity or invalidity of reservations were directly related to treaty law and not to the subjective discretion of States.

While conceding the complexity of the important topic of reservations, he believed that only by assuming a higher level of commitment would the international community be able to improve the quality and functioning of treaty law.

JIN-HEE OH ( Republic of Korea) said the issue of transboundary groundwaters affected only a limited number of States, and was not especially relevant to many others.  She urged the Commission also to move on to other topics, such as oil and gas, which might be more complex and difficult to handle, but were relevant to a much greater number of States.  She said she thought she was expressing the common wishes of the many silent non-aquifer States.  As to an instrument on transboundary groundwaters, she suggested that the Commission codify a model regional convention that would be acceptable to all States in a given region.

On unilateral acts of States, she said that to protect the rights of addressees and preserve legal stability in the international community, it should in principle not be permissible for States to revoke or modify unilateral acts freely, unless the State under obligation and the addressees of the acts agreed.  She added that, since the topic had been on the Commission’s agenda for almost a decade now, the Commission should focus on what it intended to create as the final outcome of its deliberations.

Turning to reservations to treaties, she said there was often a need to retain a reserving State as a party to the treaty, even if that State’s reservation was incompatible with the object and purpose of the treaty.  Noting the need to consider the special nature of the human rights treaties, she urged the Commission to consider the issue of differentiating what the current state of the law was and what it should be.

CARLOS DUARTE ( Brazil) said that his country, Argentina, Paraguay and Uruguay had, within their territories, one of the largest aquifers in the world, the Guarani Aquifier, which was more than 1.2 million square km, most of it under Brazilian territory.  The countries had set up a legal framework to regulate their principles, rights and duties, and had been able to reach understanding on most of the issues.  A step-by-step approach must be pursued with regard to the development of the transboundary groundwaters issue.  States had the primary responsibility for the way groundwater resources were managed.  Regional agreements and approaches played a fundamental role in reconciling national interests and international concerns.  Brazil believed that water resources belonged to the State where they were located and exclusively subjected to the sovereignty of States.

JIAN GUAN ( China) said that a legal text should make an explicit reference to the sovereign rights of States over their aquifers as a natural resource.  Since the topic of “transboundary aquifer systems” was no longer limited to transboundary confined groundwaters, which might communicate with surface waters, it should be noted that there was no overlap with the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses.  Concerning the meaning of several principles related to the topic, he suggested that the Commission study the practice of relevant States and make further proposals based on ample scientific evidence.  He also recommended proceeding cautiously in deciding upon the form of a final legal instrument, so as to avoid imposing unreasonable constraints on the sovereign rights of States in utilizing aquifers and in resolving questions relating to transboundary aquifer systems through consultations.

He said that intensifying the studies on unilateral acts of States, and determining the conditions under which unilateral acts of States could produce legal effects, would help maintain the stability and predictability of international relations.

Turning to reservations to treaties, he said the conditions for permitting or for prohibiting formulation of reservations by States constituted the core question of reservations to treaties and merited more in-depth study.  He endorsed the Special Rapporteur’s view that the Vienna Convention on Treaties was open and flexible on the question of reservations.

When the Sixth Committee met again this afternoon, ARPAD PRANDLER ( Hungary) agreed with the special feature in the draft articles on transboundary groundwaters that covered activities that might have a negative impact on aquifer systems, such as pollution above ground.  He said the importance of dealing with underground fresh water resources had been growing during the last decades due to the threat of ever-decreasing availability of drinking water in many parts of the world.  The work of the Commission on the international legal aspects should keep apace with the overall development in that field, taking into account the preparations for the Fourth World Water Forum to be held in Mexico in 2006.  He recalled that the 1997 Convention on the Law of Non-Navigational Uses of International Watercourses had not yet come into force and said that was mainly due to the high threshold of ratifications that had been established upon the insistence of the upstream States.  The present status of that Convention should be taken as a caveat concerning the final legal form of the draft articles.

He said he agreed with the major thrust and content of the articles, but took exception to some aspects of article 7 on the obligation not to cause harm and article 14 on prevention, reduction and control of pollution.  He then commented in further detail on the two articles.

IGOR PANIN ( Russian Federation) said the topic of shared natural resources seemed connected to the 1997 United Nations Convention on the Non-Navigational Uses of Transboundary Watercourses.  The Russian Federation shared the approach of the Special Rapporteur which, to a large extent, was based on the Convention.  It demonstrated that some transboundary aquifers had their own peculiarities which required specific regulations.  Joint mechanisms and special arrangements required that attention should be paid to sovereign rights.  Account should also be taken of the particular features of the aquifers and the level of development of the two States sharing them.  The Russian Federation also had doubts about some of the terminologies used in the draft articles.  Priority should be given to regional arrangements.  His delegation looked forward to completion of work on the draft for the Commission to complete a first reading at its next session

The Russian representative next touched upon the topic of unilateral acts of States, which he described as complex and hard to codify.  The work done so far by the Special Rapporteur was extremely useful, and he expressed gratitude for his report.  He went on to enunciate Russia’s positions on the details of some of the articles.  He believed that the Special Rapporteur should not attempt to define broad general rules.  The 1969 Vienna Convention on the Law of Treaties should be a model.  In carrying out future work, Russia believed that the Commission should concentrate on unilateral obligations.  The complexity and inconsistent nature of the topic required further work with detailed comments.  He also urged a cautious approach by the Special Rapporteur.

IVO BRAGUGLIA ( Italy) said that given the growing importance of aquifer systems, and the need to protect those systems from pollution, the work of the Commission in elaborating a text that could serve as a model for States that had transboundary aquifers was very useful.  For geographic reasons, Italy had only a limited direct interest in the topic.

Italy in the past had expressed regret about the slow pace of the work on reservations to treaties, he said, but fortunately the latest report advanced the work on certain central questions concerning reservations incompatible with the object and purpose of a treaty.  It was difficult to establish precise rules on the subject so he considered it prudent for the Commission to dwell on the consequences of an objection that considered a reservation to be incompatible with the object and purpose of a treaty.  The Commission should encourage States to work towards a more appropriate use of reservations in accordance with the Vienna Convention on the Law of Treaties.

REMIGIUSZ HENCZEL ( Poland) said the study of unilateral acts of States was connected with their definition, the conditions of their validity, and other related questions.  It must also be based on a careful case study.  Given the extraordinarily broad scope of the topic, the attempts to limit the coverage of the reports and the draft articles were understandable.  He said he was interested in the idea of differentiating between “unilateral conduct” and “unilateral acts” in their strict sense, and elaborated on his views concerning the issue.  The draft articles should concentrate on acts, which created obligations for the author-State, he said, giving a description of the kinds of acts that might not be covered.  He also detailed his position on the binding effects of some acts.  Another subject that required examination, he said, was the influence of the beneficiary-State on the legal effects of a unilateral act giving rise to the obligations of the author-State.

Turning to reservations to treaties, he drew attention to specific guidelines -- 2.6.1 on definition of obligations to reservations, and 2.6.2 on definition of objections to the late formulation or widening of the scope of a reservation.  He said they constituted real progress on those questions.  Nevertheless, they raised some doubts as to the proper legal effects.  He then proposed wording for guideline 2.6.1.  He added that 2.6.2 would be acceptable if the idea of a late formulation or widening of the scope of the reservation itself were to be maintained.

PATRICIA GALVAO TELES (Portugal), speaking on “shared natural resources”, said her country was still carefully analysing the draft articles, as well as whether there was any relevant national practice to reply to the questionnaire prepared by the Special Rapporteur on the topic.  On the final form of the draft articles, her delegation felt that their form and contents should correspond.  Portugal was keeping an open mind on whether the text being developed with regard to aquifers should apply in their entirety to oil and gas.

On “unilateral acts of States”, she reiterated her delegation’s position that the International Law Commission should conclude its study and present its conclusions, accompanied by examples of State practice.  It welcomed the Commission’s intention to complete work on the topic soon, and encouraged it to present the results at its next session in 2006.

As regards the topic “reservations to treaties”, she said it was premature for the Special Rapporteur to qualify reservations as valid or invalid.  The sole distinction that constituted a starting point for her delegation was the one made in paragraph 355 of the report.  That was by those who considered that reservations were intrinsically prohibited because they were incompatible with the object and purpose of the treaty, of those who thought that the effectiveness of reservations depended only on the reactions of other States.  She said the Vienna Convention on the Law of Treaties was sufficient, and that emphasis should be put on the scope of the effects of the reservation, rather than on the qualification issue.  She said the Special Rapporteur’s work on the topic seemed to open a door that most States had been overlooking, namely, States could object to reservations for reasons other than the one provided for in article 19 (c) of the Vienna Convention.  She urged flexibility in the Special Committee’s work and welcomed the desire of the Rapporteur to meet representatives of human rights bodies next year to discuss his work.

CLAUDIO TRONCOSO ( Chile) said the Special Rapporteur had adequately reflected the great variety of the content, form, authors and addresses of unilateral acts of States.  Chile believed that unilateral acts of States were one of the sources that gave rise to international obligations.  While Chile accepted to a large degree the conclusions in the eighth report, he disagreed with the idea that the rules governing the formulation of unilateral acts should be more flexible than those contained in the Vienna Convention on the Law of Treaties.  To introduce the criterion of “flexibility” was dangerous and could lead to abuses.

He said Chile did agree with the clear distinction that had been made between unilateral acts in the strict sense of the term and other conduct that could have similar effects to those acts.  Even though the elaboration of a set of draft articles establishing a regime applicable to all unilateral acts and conducts could be a very long-term task, the efforts made so far should not be abandoned halfway.  In the event a draft convention could not be agreed upon, the work would enable the Commission to formulate some guidelines to orient States in their practice.

ELADIO LOIZAGA (Paraguay), addressing the subject of shared natural resources, said the issue of transboundary groundwaters was of special interest to his country since it shared the Guarani Aquifer with Brazil, Argentina and Uruguay.  Some delegations, including his own, believed it was necessary to include an explicit reference to General Assembly resolution 1803, on the principle of permanent sovereignty over natural resources.  That principle of permanent sovereignty should be the subject of a separate article that endorsed the principle and did not subject it to interpretation or speculation.

He also agreed with the Special Rapporteur’s observation that the principle of equitable use was viable only for a shared resource, and that acceptance of the shared character of transboundary aquifers between States did not mean an internationalizing or universalizing of transboundary aquifers.  The draft articles should be founded on three basic principles -- sovereignty, use, and environmental impact.  Paraguay attached priority to the issue of environmental impact and the need to prevent and protect from pollution.

ROBERTO LAVALLE-VALDES (Guatemala), speaking on unilateral acts of States, said his delegation was concerned about the slow progress of work on it, eight years after the Commission added it to its programme of work.  His delegation was convinced that it was useful to codify and develop the law on the subject.  The abstract methodology followed by the Commission in its work on the topic was not appropriate.  Guatemala proposed a minimalist approach that would avoid a definition of unilateral acts, but would, nevertheless, consider the four acts of unilateral decisions, namely, promise, protestation, acknowledgement, and denunciation, leaving aside acts that could have legal effects not linked to the intention of the authoring State.

TAMAR KAPLAN (Israel), in reference to responsibility of organizations, commented on the Commission’s request for comments concerning aid and assistance provided by a State to an international organization in the commission of an internationally wrongful act.  Israel questioned whether, given the need to encourage international law, it was appropriate to limit a State’s responsibility in situations of aid and assistance to a wrongdoing State only to those circumstances where the assisting State was itself bound by the same legal obligation.  She also questioned the suitability of including that provision in articles 12.b and 13.b.

On the subject of expulsion of aliens, she said that if the topic were to proceed, it should be strictly limited to the examination of the expulsion of individual aliens, whether present legally or illegally in the territory of a foreign State, giving due regard to the right to expel under international law and the possible limitations of that right.  Consideration should exclude any discussion of such issues as refugee status, refoulement, decolonization, self-determination and the movement of populations, which clearly exceeded the scope of the present topic.

Turning to the topic of shared natural resources, she said that any principles related to the subject must be general and flexible in nature.  Each transboundary aquifer was different, in its geographical, geological and hydrological characteristics, and in its environmental impact, and political and economic significance.  Israel supported the general approach adopted in the draft articles, which emphasized the importance of bilateral, as well as regional agreements and their precedence over the arrangements in the draft articles.  She was not persuaded, though, that it would be appropriate to adopt the draft articles in the form of a convention.

PHANI DASCALOPOULOU-LIVADA (Greece), addressing the topic shared natural resources, believed that the regulation of the use of transboundary aquifers would satisfy an already existing legal need which was bound to become evident in the future.  She said setting out rules on the matter would also influence the regulation of the use of other natural resources, as had been pointed out by the Special Rapporteur.  She noted the fact that some of the draft articles were based on the 1997 Convention on the Non-Navigational Uses of Transboundary Watercourses or were inspired by some of its provisions.  States should be encouraged to adopt agreements such as those provided by the 1997 Convention, as well as provisions of the 1992 Convention of the Economic Commission for Europe on the Protection and Use of Transboundary Waters and International Lakes.

She commented on the various draft articles, noting that, for instance, it was not clear whether the other agreements referred to in article 4 (2) would regulate matters other than groundwaters.  She said that that should be specified; article 5, which established the principle of equitable and reasonable utilization of transboundary aquifers, was of cardinal importance for their protection and management.  She said the final form of the draft articles should be a convention.

MARC PECSTEEN ( Belgium) dealt with the section of the International Law Commission’s report in which the Commission had indicated that it would welcome comments and obligations from Governments on the revocability and modification of unilateral acts.  He noted that the Commission had stated particularly that it would be interested to hear about the practice relating to the revocation or modification of unilateral acts, any particular circumstances and conditions, the effects of a revocation or a modification of a unilateral act, and the scope of possible third party reactions in that respect.

He said the only effect possible for an objection about the incompatibility of a reservation was a public denunciation of its invalidity.  Objection alone could not have any effect on the validity of the reservation.  However, the accumulation of similar objections towards the same reservation could constitute some practice for the future, in the sense of article 31.3 (b) of the Vienna Convention on the Law of Treaties.  He said that could help decide the validity of the reservation.  On the contrary, the absence of such objections could be an indication of the validity of the reservation.

He said that when Belgium objected to a reservation because it seemed to be contrary to the purpose of a treaty, it considered itself linked by the treaty as a whole towards the State that made the reservation.

MICHAEL KIBOINO ( Kenya) expressed the hope that future work on shared natural resources would include such resources as oil and gas.  Given the potential impact of the exploitation of groundwaters on the environment, the Special Rapporteur should consider expanding the scope of the consultations to include international bodies such as the United Nations Environment Programme (UNEP) that dealt with environmental issues.  He welcomed the emphasis given to bilateral and regional arrangements, and proposed that the convention should include guiding principles that would enable States to elaborate more specific bilateral and regional arrangements.  Noting the paucity of State practice on the use and exploitation of transboundary groundwaters, especially in developing countries, he appreciated the inclusion of the article on scientific and technical assistance to developing States.

Turning to unilateral acts of States, he said the examination of State practice, including actual examples as included in the report of the Special Rapporteur, could greatly assist in the quest to define and develop important concepts on unilateral acts.  It was critical to formulate a clear definition of unilateral acts of States, their capability of creating legal obligations, and to distinguish such acts from those that created political obligations.  A definition should be narrow in scope so as not to infringe on the rights of States to make political pronouncements.

He expected that, once developed, a guide to practice on reservations to treaties would reduce uncertainty and assist States, international organizations and other practitioners in their treaty practice.  He preferred the use of the term “validity” as opposed to “admissibility” or “permissibility” in respect of reservations that went against the object and purpose of a treaty.

VICTORIA GAVRILESCU ( Romania) said her delegation agreed with the expression “validity”, used in relation to reservation to treaties.  The notion of “opposition” to treaties was also essential.  Concerning acceptability of reservations, she said her delegation thought it was necessary to distinguish the reservation from the compatibility, and goals of the treaty.  The Romanian delegation agreed with the methodology of applying article 19 of the 1986 Vienna Convention.  She said that when a State considered that a reservation was incompatible with the goal and principle of the treaty, that State could not be bound by it.  International practice should be taken into account.

It should not be forgotten that the principle of consent was universally recognized.  Cooperation in writing treaties was the means to the realization of the objectives and goals of the United Nations, she said.

SUSANA RIVERO ( Uruguay) said her delegation welcomed the fruitful work done by the Special Rapporteur on shared natural resources.  Uruguay attached extreme importance to the assistance provided by the scientific community that had led to a greater understanding of the technical and geological aspects of transboundary aquifers.  Noting that her country shared the Guarani Aquifer with Argentina, Brazil and Paraguay, she said she was pleased to see that the situation of the Guarani had been one of those considered by the Commission.  Since 2003, the four countries had been working on a project aimed at environmental protection and sustainable development of the Guarani Aquifer.

She said she supported the criterion that it was up to the aquifer States to formulate and regulate agreements concerning such transboundary aquifers, and that those agreements would have priority over the draft articles.  She agreed with the principles of equitable and reasonable use -- the obligation not to cause harm; the obligation to cooperate; and regular exchange of information and data.  A resource as important as water, and a principle as fundamental and sensitive as sovereignty, must be considered under conditions of good faith, international cooperation and in accordance with international law.

JOHN CURRIE ( Canada), speaking on “shared natural resources”, said his country agreed that the objectives of the proposed framework of the draft articles on the topic -– protection of aquifers, and emphasis on bilateral cooperation and shared information and data -– were important goals.  The principle not to cause harm -- sic utere -– had underlined Canada’s relationship with the United States, and formed an important part of discussions/litigation involving transboundary environmental issues concerning shared water resources.

Canada believed that reliance on the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses as a framework for a new convention dealing with groundwaters should be balanced with other approaches.  The fact that the 1997 Convention was not yet in force and still lacked considerable international support suggested that it would be preferable to explore and incorporate other approaches, so as to generate consensus on the new draft articles.  He noted, in particular, that the provisions of the current framework that would allocate water resources located in aquifers between States on the basis of “equitable and reasonable utilization” might run counter to other formulas that would pre-exist the instrument, should it become a convention or take some other legal binding form.

He said it was useful that draft article 3 provided that bilateral and regional arrangements would prevail over the general provisions of the instrument.  The approach in the articles not to create a hierarchy of uses would run counter to Canada’s relationship with the United States where the Boundary Waters Treaty usefully had established a regime for uses, he stated.

Introduction of Draft Resolution

The representative of the Netherlands introduced the draft resolution approving observer status in the General Assembly for The Hague Conference on Private International Law (document A/C/.6/60/L.9).  He said the Conference was an intergovernmental organization based at The Hague.  It had 65 member States, and another 60 States, without being members of the organization, were party to one or more Hague Conventions.  Its work covered a wide range of areas, such as commercial and banking law and international civil procedure, as well as family law.

* *** *

For information media • not an official record