Sixty-second General Assembly

Sixth Committee

22^nd Meeting (PM)

LEGAL FRAMEWORK URGENTLY NEEDED FOR EQUITABLE MANAGEMENT OF WORLD’S

WATER RESOURCES, ASSEMBLY’S SIXTH COMMITTEE TOLD

 

International Law Commission Chairman Warns of Looming Prospect

Of Crisis for Hundreds of Millions of People; Global Cooperation Essential

There was an urgent need for an international legal framework for reasonable and equitable management of water resources to avoid a water crisis that would affect hundreds of millions of people, the Chairman of the International Law Commission told the Sixth Committee (Legal) this afternoon, as it began examination of the final chapters of the Commission’s report on its fifty-ninth session.

Topics under discussion in the Committee are reservations to treaties; shared natural resources; and the obligation to extradite or prosecute.

Ian Brownlie ( United Kingdom), Chairman of the Commission’s fifty-ninth session, warned that “the looming prospect of a water crisis that would affect hundreds of millions of people, particularly in the developing world, required an equitable management of water resources, international cooperation, as well as settlement of disputes”.

He said the special rapporteur on the issue of “shared natural resources” had suggested a second reading of the Commission’s 19 draft articles on transboundary aquifers in 2008, and to treat it independently of any future work on oil and gas.  Members of the Commission, on the whole, had agreed with the special rapporteur.  The Commission had invited comments on the draft articles from Governments by 1 January 2008.

[The Commission’s work on a law applicable to transboundary aquifers builds on an earlier effort on international watercourses which culminated in the 1997 United Nations Convention on the Non-Navigational Uses of International Watercourses.]

The representative of Germany said the elaboration of an instrument on transboundary water sources should include internationally agreed standards in groundwater utilization.  It should also consider the forms of cooperation at both State and the level of municipalities.  The instrument should reflect the emerging idea that access to drinking water might amount to a human right.  It should clearly establish that utilization of groundwater, be it transboundary or not, had to reflect the needs of future generations.  Therefore, even the deterioration of an aquifer belonging to one particular State should be a matter of international concern.

The representative of Argentina expressed appreciation for the attention paid to the world’s transboundary aquifers, including the extensive Guarani Aquifer System which straddled the territories of his country, Brazil, Paraguay and Uruguay.  He said the final form of the draft articles should be a declaration of general principles or a framework convention.  He welcomed a provision of the draft articles which affirmed the principle of sovereignty of a State over a section of the aquifer or transboundary aquifer system located in its territory.

The representative of Sweden, speaking for the Nordic countries, said management challenges related to groundwater were quite different from those of oil and gas.  There was a vast array of bilateral agreements and practices regarding utilization of oil and gas already in place.

Also speaking this afternoon were the delegates of India, Austria, China, Ireland, Egypt, Uruguay, Guatemala, Italy and the United States.

The Committee will meet again at 10 a.m. tomorrow, Friday, 2 November, to continue debate on the Law Commission’s report and to hear an address by the President of the International Court of Justice.

Background

The Sixth Committee (Legal) met this afternoon to continue its debate on the report of the International Law Commission on the work of its fifty-ninth session, with focus on the final chapters covering reservations to treaties, shared natural resources, and the obligation to extradite or prosecute (for background, see press release GA/L/3329 of 29 October).

The report was to be introduced by Ian Brownlie ( United Kingdom), Chairman of the Commission’s fifty-ninth session held in Geneva from 7 May-5 June and from 9 July-10 August this year.

The International Law Commission was established by the General Assembly at its second session in 1947 with the objective of promoting the progressive development of international law and its codification (resolution 174 (II)).  Its 34 members, elected by the General Assembly for five-year terms, reflect broad expertise and practical experience in the field of international law, including international dispute settlement procedures. 

Statement by Law Commission Chairman

IAN BROWNLIE, Chairman of the fifty-ninth session of the International Law Commission, introduced the second part of the Commission’s 2007 report, dealing with three topics:  reservations to treaties, shared natural resources, and the obligation to extradite or prosecute. 

He said 35 draft guidelines on “reservations to treaties” –- a topic on the Commission’s agenda since 1993 –- were referred to its Drafting Committee.  Nine others, referred to the Drafting Committee last year, were adopted during the 2007 session.  Among the subjects covered:  incompatibility of a reservation with the object and purpose of the treaty; determination of the object and purpose of the treaty; vague or general reservations; reservations to a provision reflecting a customary norm; and reservations contrary to a rule of jus cogens.

The others, he said, were reservations to provisions relating to “non-derogable rights”; reservations relating to internal law; reservations to general human rights treaties; and reservations to treaty provisions concerning dispute settlement or the monitoring of the implementation of the treaty.  He said the Commission would welcome replies to four questions on “reservations to treaties” set forth in chapter III of its report, in particular that concerning the conclusions States drew if a reservation were found to be invalid for any of the reasons noted in article 19 of the 1969 and 1986 Vienna Conventions on the Law of Treaties.  He said the answers would be useful for further consideration of the point, which was fundamental to the topic.

On the topic “shared natural resources”, first considered in 2002, Mr. Brownlie said the Commission last year adopted, on first reading, 19 draft articles on the law of transboundary aquifers, together with commentaries.  It had been decided to transmit them to Governments, through the Secretary-General, for their comments and observations, with the request that they respond by 1 January 2008.  He noted that the United Nations Educational, Scientific and Cultural Organization (UNESCO), whose experts provided technical advice in the Commission’s elaboration of the draft articles, had already organized several regional meetings to brief and sensitize Governments on the drafts.

This year, he added, the Commission had before it the fourth report of its Special Rapporteur, which focused on the question of the relationship between the work on transboundary aquifers and any future work of the Commission on oil and gas.  According to the Commission Chairman, the Special Rapporteur proposed that the Commission should proceed with the second reading of the draft articles on the law of transboundary aquifers in 2008, and treat that subject independently of any future work by the Commission on oil and gas.

In terms of timing, he said “the looming prospect of a water crisis that would affect hundreds of millions of people, particularly in the developing world, required an urgent formulation of an international legal framework for reasonable and equitable management of water resources, international cooperation, as well as settlement of disputes”.  In the debate on the topic, Commission members agreed with the Special Rapporteur that the Commission should proceed with, and complete, the second reading of the law on transboundary aquifers independently of any future work on oil and natural gas.

On “the obligation to extradite or prosecute”, he said it was included in the Commission’s current programme in 2005.  The second report of its Special Rapporteur and the comments from 20 Governments were considered.  It was felt that the source of the obligation to extradite or prosecute was central to the present topic, and should be the object of rigorous analysis by the Commission.  He said the Commission reiterated its wish, first expressed last year, to receive information from Governments concerning their legislation and practice on the topic, particularly more contemporary ones.

Statements

CARL HENRIK EHRENKRONA ( Sweden), speaking also for the other Nordic countries ( Denmark, Finland, Iceland and Norway), said it was fundamentally important that all States that became parties to a treaty should commit themselves to its object and purpose.  Ratification of a treaty by a State was an expression of consent that it would be bound by its rules as a State party.  A State should, therefore, not be permitted to accede to a treaty, especially one of a normative multilateral character, and at the same time nullify its central provisions through reservations.  It was clear from article 19 of the Vienna Conventions on the Law of Treaties that it was not intended for reservations incompatible with the object and purpose of a treaty to be included in treaty relations between States.  Such reservations should therefore have no legal effect, and they should be considered null and void.

He said the Nordic countries believed it was important for caution to be exercised when considering whether to allow differences in the effects of invalid reservations, depending on the nature of the treaty.  If that were not done, they felt there might be a risk of further undermining the unity of international law.  They also said a system must not be developed by which late reservations to treaties could be considered valid for the simple reason that no State had objected.

On “shared natural resources”, the Nordic countries expressed pleasure at the proposal of the Special Rapporteur that the Commission should proceed with the second reading of the draft articles on the law of transboundary aquifers in 2008, and that the subject should be treated independently of any future work of the Commission on issues related to oil and gas.  In their opinion, the management challenges related to groundwater were quite different from those related to oil and gas, as were the impacts and effects on the environment, and the commercial aspects.  Furthermore, there was a vast array of bilateral agreements and practices regarding utilization already in place.  It would be more fruitful for the Commission to accelerate its work on other topics on its agenda, rather than to delve into the topic of oil and gas.

On the subject of “obligation to extradite or prosecute”, the representative of Sweden said the anti-terrorist conventions and protocols adopted under United Nations auspices contained an aut dedere aut judicare obligation, which required a State party to submit a case to its competent authorities if it did not wish to extradite a wanted person.  United Nations Security Council resolution 1373 (2001), as well as other subsequent resolutions on threats caused by acts of terrorism, had also promoted the consolidation of that obligation.  In considering anti-terrorist conventions and protocols, he said, it was obvious from the recurrent references to the laws of the State that the obligation to prosecute was subject to prosecutorial discretion in the country.  States must meet their obligations with respect to international criminal jurisdiction.

ARUNA KUMAR VUNDAVALLI ( India) said he supported the recommendation to proceed with the second reading of the law of transboundary aquifers independently from the work on oil and natural gas, since the considerations for both were different.  While some regulations on non-recharging transboundary aquifers might be relevant to oil and natural gas, the majority of regulations to be worked out would not be applicable to groundwater.

In regard to extradition or prosecution, he recalled that States were obligated to take those actions if they were bound as party to a treaty.  The United Nations Conventions against terrorism obligated States parties to extradite or prosecute, as did the international conventions against drug trafficking, organized crime, trafficking in persons and corruption.  The main objective of the obligation was to ensure that persons accused of serious crimes were denied “safe haven”, and could be brought to trial and made to face the consequences of criminal acts.  It was thus an important tool in global efforts to combat serious offences, including those arising out of terrorism.

GERHARD HAFNER ( Austria) said that the attempt at a definition of the object and purpose of “reservations to treaties” in a provision of the draft guidelines was laudable, given the daunting nature of the task.  The practice reflected a wide use of vague or general reservations.  Whereas on one hand a State’s intention to become a party to a treaty had to be respected, on the other the State also had to respect the conditions under which it could become a party to that treaty.  Consequently, in the case where a reservation was regarded null and void, the consent to be bound by the treaty should not be affected by the illegality of the reservation.

He said Austria had enshrined the principle of aut dedere aut judicare –- extradite or prosecute -- in its criminal code.  A requirement of its application was that the crime was punishable under the law of the State where it was committed.  Austrian criminal law applied to Austrians who never could be extradited to States which were not members of the European Union, with regard to crimes committed by them abroad.  The proviso was that the crimes must be punishable under the law of the State where they were committed.  With regard to crimes committed by foreigners, Austrian law also applied if the foreigners could not be extradited.   Austria believed that the principle aut dedere aut judicare did not constitute a rule of customary international law, but could be agreed only by means of an international treaty for specific crimes.

OSVALDO MARISCO ( Argentina) said that in general terms, his country agreed with the contents of the draft guidelines on “reservations to treaties”.  It shared the Special Rapporteur’s approach of not limiting the right to make objections to reservations to those considered incompatible with the object and purpose of the treaty.  Otherwise, a State would be allowed to unilaterally impose on the parties its modification of a treaty by making a reservation.  His delegation did not consider it necessary for a distinction to be introduced in the guidelines between major and minor objections.  It considered that guidelines 2.6.7 and 2.6.8 contained a fundamental element concerning the right for objections to be made and in writing.  It also shared the view that objections produced legal effects from the moment reservations were formulated, and could be differentiated from “late reservations”.

On “shared natural resources”, he said his delegation supported the Rapporteur’s suggestion for separate handling of the issue of transboundary aquifers from those of oil and gas.  He appreciated the attention paid to the world’s transboundary aquifers, including the extensive Guarani Aquifer System, which straddled the territories of his country, Brazil, Paraguay and Uruguay.  He supported the Commission’s work on the formulation of the general rules, and believed the final form of the draft articles should be a declaration of general principles or a framework convention.  Argentina reiterated its support for the inclusion of article 3 which, he said, represented a clear affirmation of the principle of sovereignty of the State over the section of the aquifer or transboundary aquifer system located in its territory.

On “obligation to extradite or prosecute”, he said treaties establishing the application of the principle aut dedere, aut judicare could be a relevant source for drawing general conclusions, since they could provide a prima facie vision of its acceptance by States.

DUAN JIELONG ( China) said he favoured using the compatibility of a reservation with the objective and purpose of the treaty as the criterion for deciding whether a reservation was valid.  Consideration should be given to specific situations of different treaties in addition to setting general criteria when defining the object and purpose.  Vague and general reservations did not necessarily contravene the object and purpose of a treaty, and should be judged on a case-by-case basis.

While the guidelines allowed reservations in accordance with internal laws as long as they did not contravene the object and purpose of a treaty, the reservations at the same time must follow the provision of the 1969 Vienna Convention that internal law must not be invoked as a reason for non-implementation of a treaty.

On the issue of shared natural resources, he said the final form of the work on transboundary aquifers should be that of a set of principles or a non-legally binding declaration.  Conditions were not ripe for formulating an international treaty.  In addition, issues of transboundary oil and gas involved issues of permanent State sovereignty over natural resources and, with that, complex legal and technical questions.  The Commission should seek further views before making any decision.

On the question of extradition or prosecution, he said States should abide by relevant rules on jurisdiction priorities in making decisions.  For example, the priorities of the State where the crime occurred and the suspect’s State of nationality should both be ensured in exercising jurisdiction.  Moreover, the obligation to extradite or prosecute was basically a treaty obligation, unless it was being applied to a crime under customary law, in which case the obligation was bound also by international law.  A non-exhaustive list of the crimes covered in the draft articles could be an option.

PATRICIA O’BRIEN ( Ireland), on the subject of the obligation to extradite or prosecute, said the relationship between this obligation and the principle of universal jurisdiction should be carefully considered.  There was much common ground between the two, in terms of material scope and the shared objective of ending impunity.  But they served different functions in the international legal order.  A debate should be held, and the intention to formulate a draft article on the definitions was welcome.  Also to be carefully considered was the impact of “surrender” to an international tribunal and the obligation to extradite or prosecute, particularly with regard to the permanent International Criminal Court and the fact that not all States were parties to the Rome Statute.

A study of State practice and the implementation of the obligation in domestic legal systems was of critical importance in understanding the obligation, she stressed.  States must offer the utmost assistance to the Special Rapporteur in the task of conducting a systematic review of State practice, including national legislation and decisions of national courts.  And finally, the relationship between the two elements of the obligation, those of extradition and prosecution, must be delineated, including in relation to the circumstances in which one or the other was appropriate.

NAMIRA NEGM ( Egypt) affirmed that the 1969 Vienna Convention on the Law of Treaties should be the first source that governed the contractual international relations between States.  She pointed out the need to concentrate the work of the Commission on clarifying the vague provisions of the treaty, if any, without attempting to redraft it.  From that perspective, and within the deliberations of the Committee on the effects of an objection by a State on the reservation submitted by another State, she said that the objecting State should mention the reasons behind its objection on the reservation submitted by another State.  The objection to a reservation should be in compliance with the provisions of article 19 of the Vienna Convention of the Law of Treaties that the objection should not be in contradiction to the object and purpose of the treaty.

On shared natural resources, she said her affirmed that the Committee should continue its prudent approach while considering the topic, and observed that the natural resources in the territory of a State were solely subject to its national jurisdiction.  She welcomed the provision (article 3) of the draft articles which reiterated the sovereignty of a State over its share of a transboundary aquifer in accordance with General Assembly 1803 of 1962, which asserted the sovereignty of a State over its natural resources.  Her delegation would like the Commission to draw general rules concerning the means to deal with transboundary natural resources, whether concerning aquifers currently under study or the future study on oil and gas.  Those issues were usually subject to bilateral treaties that governed the relation between neighbouring States.  Also, her delegation welcomed the role of UNESCO in convening seminars on “shared natural resources”.

GUSTAVO ALVAREZ ( Uruguay) said the articles on transboundary aquifers should take the form of guidelines, so that they could serve as guidance to States in making multilateral agreements on their underground shared water resources.  The final form of the instrument could be determined later.  On the related transboundary shared natural resource of oil and natural gas, much more research would need to be done before any decision could be made on the final form the work should take.

With regard to the obligation to extradite or prosecute, he said he welcomed the approach the Commission had taken towards an important step in protecting and promoting legal rights, particularly in relation to insuring non-impunity for grave crimes.  As set out in the articles, the hierarchy of those involved needed to be determined in each situation with regard to extradition or prosecution.  Those involved were the State on whose territory a suspect currently was located, the State where a crime had been committed and the State of nationality of the suspected person.  In the absence of an extradition, the State of custody had an obligation to prosecute the suspect for the crime.

ANA CRISTINA RODRIGUEZ-PINEDA ( Guatemala) welcomed the report on shared natural resources and said the draft articles on transnational shared resources of oil and natural gas called for highly detailed work of a technical and scientific nature.  She said her country’s comments would be transmitted soon in writing.  In the meantime, the subject was important for Guatemala, since it was made up of underground aquifers.  Cooperation was key to managing the resource, but there was a lack of infrastructure on which to build sustainable steps with regard to managing the aquifers at the local, national and regional levels.  Model legislation should be developed to encourage States to strengthen their legal structures and establish such legislation where it was absent.  A non-binding instrument was most appropriate for negotiating the wide range of views regarding management of transboundary aquifers.  While she supported the view that the issues of aquifers and oil should be considered separately, parallel work on both at the same time was not precluded.

She said the obligation to extradite or prosecute was one of the most important tools for fighting impunity, and it served as the basis for treaty law.  Even so, there were too many variations in definitions of crimes and the applicability of treaties.  Many issues remained to be clarified, but the obligations of extraditing or prosecuting should not be seen as two independent functions but an integration of both elements.  The first step was the determination of jurisdiction.  Then other questions needed to be considered.  Was investigation enough, or was there an obligation to punish as well?  What about exceptions, such as military exceptions?

The obligation in her country, she said, was based solely on treaties.  Invocation of the obligation between two States involved an examination of existing criminal codes.  The articles should not contain lists of offences but rather criteria of the actions to be included.  Also, it should be kept in mind that universal jurisdiction was not always applicable, and the distinction should be made between the two to avoid confusion.  In the case of concurrent jurisdictions, priority should be given to the State in whose territory the crime had occurred.

GEORG WITSCHEL ( Germany) noted the rising number of objections to invalid reservations by States, particularly those containing human rights guarantees, and those designed to combat international terrorism.  He said that those objections illustrated that the existing Vienna Conventions on the Law of Treaties provided the necessary tools, even if some of the provisions were not entirely adequate.  The Commission should produce guidance that States could apply in their practice.

On shared natural resources, he said an analysis of recent legal instruments on groundwater revealed some indications of emerging rules for its ground management, which the Commission could take into account in its work on the subject.  Elaboration of an instrument on transboundary water sources should provide internationally agreed standards in groundwater utilization.  It should also consider the forms of cooperation, not only on the State level but also on the level of municipalities.  Both should reflect the emerging idea that access to drinking water might amount to human right.  Furthermore it should clearly establish that utilization of groundwater, be it transboundary or not, had to reflect the needs of future generations.  Therefore even the deterioration of an aquifer belonging to one particular State should be a matter of international concern.

He said his country recognized the principle of universal jurisdiction and the right of every State to prosecute genocide, war crimes, crimes against humanity, slavery and piracy which were firmly established in customary international law.  On the other hand, he doubted that there was a common opinion among States, or sufficient evidence of State practice, to assume such an obligation beyond the cases covered by binding international agreements.

VALERIO ASTRALDI (Italy), on the topic of natural resources, said oil and gas were a complex subject that raised considerable difficulties of a political and technical nature, and it would be more appropriate for the Commission to initiate its study by making a preliminary assessment of the feasibility of useful work on the matter by examining available practice.  Perhaps current arrangements reflected specific concerns that did not lend themselves to general rules.  Such an analysis would also help to identify areas where general rules could be elaborated, in either a binding or non-binding form.

On the obligation to extradite or prosecute, he said the definition of the scope of the obligation should be at the heart of the Commission’s study.  The topic should not be widened to include universal jurisdiction in criminal matters, even though the two were related.  The question of universal jurisdiction should be considered as a separate topic, since its implications went far beyond the obligation to extradite or prosecute.

With regard to reservations to treaties, he said the Commission should refrain from addressing details that did not belong in the commentaries.  The conclusions were generally acceptable, although they provided limited guidance.  Ultimately, the Vienna Conventions established the fundamental principle on reservations.

TODD BUCHWALD ( United States) said the draft guidelines on reservations to treaties were useful, but some aspects required further consideration.  On the subject of shared natural resources, the work on transboundary aquifers was an important advance in providing a possible framework for the use and protection of underground aquifers, which played an increasingly important role in water resources for human populations.  There was still much to learn about aquifers, and the current draft articles went beyond current law and practice.  Thus, context-specific arrangements provided the best way to address pressures on transboundary groundwaters, rather than a global framework treaty.  However, if the Commission continued to follow the expressed preference of many States, appropriate final articles should be included with additional articles to establish the relationship between this convention and other bilateral or regional arrangements.  The Commission must be careful not to supersede those arrangements or to limit the flexibility of States in entering into such arrangements.

With regard to transboundary gas, he said he did not object to the sending out of a questionnaire, but there was not much need for the Commission to deal with the matter.  The subject had not raised real conflicts and, when they had, States had worked out practical accommodations.

On the obligation to extradite or prosecute, he said his country was party to a number of international conventions that contained the obligation.  They were an important aspect of collective efforts to deny safe haven to terrorists and other criminals.  However, there was not sufficient basis in customary international law or State practice to formulate draft articles that would extend the obligation beyond those binding international legal instruments; States should therefore join those instruments.  Analysis of State practice would be important for determining how the Commission should proceed.

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