INTERNATIONAL LAW COMMISSION ‘BROADENING HORIZONS’ OF COOPERATION WITH OTHER LEGAL BODIES, CHAIRMAN TELLS SIXTH COMMITTEE

Sixty-third General Assembly

Sixth Committee

16^th Meeting (AM)

INTERNATIONAL LAW COMMISSION ‘BROADENING HORIZONS’ OF COOPERATION

WITH OTHER LEGAL BODIES, CHAIRMAN TELLS SIXTH COMMITTEE

Discussion of Annual Report Items:  Shared National Resources,

Effects of Armed Conflict on Treaties; Draft Articles Are Examined

The importance of the cooperative work carried out by the International Law Commission with other bodies was stressed by the Commission Chairman, Edmundo Vargas Correño, today, as the Sixth Committee (Legal) began its annual review of the Commission’s report, with a focus on shared natural resources, the effect of armed conflicts on treaties, and other matters before the Commission.

Mr. Vargas Correno said the Commission maintained its relations with existing bodies, such as the International Court of Justice, but was also using its statutory mandate to “broaden the horizons of intellectual collaboration”.  This year, a joint meeting was held with the appellate body of the World Trade Organization.  Next year, a meeting with legal advisers of international organizations within the United Nations system would be held.

He spoke of the two-day commemorative event held in May this year, in Geneva, to mark the sixtieth anniversary of the Commission.  Legal advisers representing legal systems the world over had attended, as had International Court of Justice judges, former Commission members and international law experts.  In addition, national and regional events had involved States, regional organizations, professional associations and academic institutions.  He said the Commission relied on advice from Governments, as well as for their information on State practice, particularly that which may not be readily accessible to the public.

When the Sixth Committee discussion began, Norway’s representative, speaking for the Nordic countries on the topic of shared natural resources, first welcomed the Commission’s increased interaction with other legal bodies, but noted with regret that because of the financial restraints, some Special Rapporteurs were prevented from participating in the Committee’s consideration of the Commission’s report.  He also said the Commission could make its questions to States more “user-friendly” by giving background on why the information it wanted would be useful.

On shared natural resources, he said the recommended two-part approach to the articles on transboundary aquifers was appropriate, by which the articles would first be annexed to a resolution and recommended to States as a guideline, with a decision about a convention based on the articles to be made later.  As to whether transboundary oil and gas reserves should be taken up along with aquifers, he said those resources presented more complicated management challenges and had been adequately addressed in bilateral relationships.  The Commission should note the existence of those arrangements, rather than undertake further codification.

The representative of Saudi Arabia said the articles on transboundary aquifers did not adequately address issues such as the banning of horizontal drilling.  They also did not distinguish between dry areas and those rich in groundwater.  The use of groundwater as drinking water should be prioritized.

On the same subject, Austria’s representative said bilateral and regional agreements towards managing transboundary aquifers needed clarification.  A joint management mechanism was only one possibility.  On the Commission’s work in general, he said its discussion of the rule of law was the Commission’s “essence”.  The Commission should adopt a dynamic role on specific issues the Legal Committee could consider.  On the effects of armed conflict on treaties, he said the proposed articles should deal only with international armed conflicts.  A broader scope would be unmanageable.

The representative of Belarus, on that issue, said a range of problems for parties to treaties and third States were involved, and the Commission must prepare progressive recommendations to deal with them.  Armed conflicts could not automatically lead to the suspension of international treaties; treaties had to be upheld unless “insurmountable circumstances” to the contrary.

On armed conflict and treaties, the delegate of the Republic of Korea noted that that the articles were intended to support the applicability of treaties under situations of armed conflict.  He said States should be allowed more discretion in suspending treaties.  He said it was gratifying that the International Law Commission, entrusted with codifying international law, was working with other international legal bodies such as the International Court of Justice.

Also speaking today were the representative of Finland (for the Nordic countries, on the effects of armed conflicts on treaties), Philippines, Brazil, United Kingdom, Germany, Switzerland, Italy and the Czech Republic.

The Committee will meet again at 10 a.m. tomorrow, 28 October, when the debate on the report of the International Law Commission’s is expected to continue, with a focus on the same themes.

Background

The Sixth Committee (Legal) met today to take up the annual Report of The International Law Commission.  The Committee has before it the Commission’s report on its sixtieth session ( Geneva, 5 May to 6 June, and 7 July to 8 August) (document A/63/10).

On the topic of shared natural resources, it states that the Commission adopted, on second reading, a preamble and 19 draft articles and commentaries on the law of transboundary aquifers.  It recommended a two-step approach to going forward on an instrument.  First, the General Assembly should take note of the articles and annex them to a resolution with the recommendation that States make appropriate bilateral and regional arrangements for proper management of such aquifers on the basis of the principles enunciated.  The elaboration of the articles into a convention could be considered at a later stage.

The report also states that the Commission refrained from formulating a provision on the relationship between the articles and other international agreements, or one on the settlement of disputes.  Both would become necessary only when the second step was initiated.

On the topic of effects of armed conflicts on treaties, the report states that the Commission provisionally adopted a set of 18 articles and commentaries, along with an annex, listing categories of treaties, which it is implied should continue during armed conflict, whether in whole or in part.  The articles would be transmitted through the Secretary-General to Governments for comment by 1 January 2010.

The report states that the articles apply to situations where at least one party to a treaty is also party to an armed conflict, whether international or not.  The premise is based on the basic principle of continuity of treaty relations, which holds that the outbreak of armed conflict does not necessarily terminate or suspend the operation of a treaty.  Expository consequences are drawn from that.

The report also states that eight articles and commentaries were adopted on the responsibility of international organizations, dealing with the invocation of such responsibility by a state or other international organization, if an obligation is breached.  These constitute chapter I of part three of the articles on implementation of an international organization’s responsibility.  The Commission also took note of seven articles provisionally adopted by the drafting committee.  Those deal with the countermeasures that constitute chapter II of part three on implementation.  They were to be considered next year.

Countermeasures were prominent in the debate on the Special Rapporteur’s report on implementation, the Commission’s report continues.  As the six articles on invocation of responsibility were referred to the drafting committee, a working group was established to consider countermeasures and the advisability of including a provision relating to the admissibility of claims.  Upon study, a draft article on admissibility of claims was included with the six articles on countermeasures.

In connection with expulsion of aliens, the report says the Commission considered questions raised by a working group established in light of a 2007 debate over the report of the Special Rapporteur, in relation to expulsion of dual or multiple nationals and to loss of nationality or denationalization in relation to expulsion.  Upon determination that there was no need for separate articles on the matter, since clarifications would be made in commentaries, the seven relevant draft articles were referred to the drafting committee to remain there until all draft articles on the matter were provisionally adopted.

In relation to protection of persons in disasters, the report says the Commission’s consideration was based on a report of the Special Rapporteur and on a Secretariat memorandum primarily focused on natural disasters.  Among the many issues discussed were the main legal questions to be covered, including those concerning the approach to be taken, and the scope, in terms of subject, personal scope, space and time.

On immunity of State officials from foreign criminal jurisdiction, the report says the Commission’s debate was also based on a report of the Special Rapporteur and a Secretariat memorandum.  Among the matters under discussion were the legal questions to be considered when defining the scope of the topic, including officials to be covered, the nature of acts to be covered and possible exceptions.

In connection with the obligation to extradite or prosecute (aut dedere aut judicare), the report says the Commission’s debate was based on a report of the Special Rapporteur, in combination with comments and information received from Governments.  Issues discussed were substantive questions related to the customary nature of the obligation, the relation of universal jurisdiction and international courts, and the procedural aspect for future consideration.

Other matters covered in the report are the establishment of a planning group to consider the Commission’s programme, procedures and working methods; the two-day event to commemorate the Commission’s sixtieth anniversary; the Commission’s current role in promotion of the rule of law; reconstitution of a working group on the Commission’s long-term programme of work; and inclusion in the current programme of work of two topics, namely, “treaties over time” and “the most-favoured-nation clause”.  Two study groups on those two items were to be established during the Commission’s next session, to be held in Geneva from 4 May to 5 June, and from 6 July to 7 August 2009.

As usual, the Commission’s report contains a section on specific issues, on which comments would be of particular interest.  With regard to reservations to treaties, the report says there is a “dearth of practice” on reactions to interpretative declarations, and that opinions among Commission members differed.  Therefore, the Commission would like States to respond to a number of questions.  Were there circumstances in which silence in response to an interpretative declaration could be taken to constitute acquiescence in the declaration, and if so, what would those circumstances be?  If silence did not per se constitute acquiescence, should it play a part in the legal effects brought about by the declaration?

Further, taking into account that next year’s report would deal with consequences of interpretative declarations, the report says the Commission would like views on what the consequences of interpretative declarations were for the author, the State or international organization that approved the declaration, and the State or organization that expressed opposition to the declaration.  More generally, the Commission wished to receive views on the impact that reactions of other States or organizations would have on the effects produced by the interpretative declaration.

With regard to responsibility of international organizations, the report says the Commission would welcome views on articles 46 to 53, dealing with the invocation of the responsibility.  Views on countermeasures against international organizations would also be welcome.

Finally, on protection of persons in the event of disasters, the report says the Commission would welcome information on State practice, including domestic legislation.  Information on specific legal and institutional problems in dealing with or responding to disasters would be particularly useful.  The United Nations could provide information on how the system had institutionalized roles and responsibilities in delivering assistance to affected populations in disasters at both global and country levels, including in the disaster response phase, and also in pre- and post-disaster phases.  How did the Organization relate in each of those phases with other actors such as States, organizations, specialized national response teams and others?  That information would also be sought from the International Federation of the Red Cross and Red Crescent Societies.

Statement by Law Commission Chairman

EDMUNDO VARGAS CARREÑO, Chairman of the International Law Commission, introduced the Law Commission’s report, noting that although the report followed the pattern of previous years, the Commission was mindful that a better application of the included chapters lay in delving further into corresponding substantive chapters and previous reports of the Commission.

He spoke of the interaction between the Commission and Governments on the Commission’s statutory working methods, and said the Commission relied on advice from Governments, and also for their reactions on broader policy questions, as well as for information on State practice, particularly practice not readily accessible to the public.

Equally unique, he added, was the role of the Special Rapporteur, who served as a “fulcrum around which the Commission’s work on topics revolved”.  Such interaction meant that the Commission’s final product would be “better grounded in practice than grandiose theoretical considerations”.  Furthermore, the Law Commission might consider identifying in advance one or two topics on its agenda, which could be a subject of discussion in the forum of the legal advisers, where the Special Rapporteur on the concerned topic could be present, during the Sixth Committee’s consideration of the Commission’s work.

Introducing the report in three parts, the Commission chairman said the Commission attached particular importance to its cooperative work with other bodies.  While maintaining its relations with existing bodies, including the visit of the President of the International Court of Justice, the Commission was increasingly using its statutory mandate to “broaden the horizons of intellectual collaboration”.  This year, the Commission held a joint meeting with present and former members of the appellate body of the World Trade Organization, while next year, it envisaged a meeting with legal advisers of international organizations within the United Nations system.  The Commission was working to make such meetings more focused and issue-oriented, noting that the Commission’s involvement in the International Law Seminar was crucial to teaching, dissemination and wider appreciation for international law.  Expressing appreciation to Governments for their voluntary participation in that regard, he said the trust fund on the backlog of the Commission’s Yearbook sought to achieve a similar goal.

He noted the two-day commemorative event to mark the sixtieth anniversary of the Commission, and said many legal advisers from all legal systems and cultures, along with International Court of Justice judges, former Commission members and other international law experts, had attended the event.  The meeting with legal advisers provided a useful forum for interaction, he said, and the Commission considered it useful to have such meetings.  It was also worth noting that Member States, with regional organizations, professional associations, academic institutions and concerned Commission members, had convened national and regional meetings focused on the Commission’s work.  Expressing gratitude for the preparatory role the Codification Division played in the event, he said he appreciated the two documents prepared by the Division:  “protection of persons in the event of disasters” and “immunity of State officials from foreign criminal jurisdiction”.  The Division had also done remarkable work in its use of information and communications technologies.

Taking up chapter IV on “shared natural resources” of the Commission’s report, the Chairman said the Commission had benefited greatly from the advice by groundwater experts from various United Nations agencies.  The change in focus from “transboundary groundwaters” to “transboundary aquifers” was a reflection of this legal and scientific collaboration, which he hoped would make the draft articles on the matter readily accessible and user-friendly.

By including activities likely to have an impact on an aquifer or aquifer system, the scope of the draft articles was broader than the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses.  Such a broad scope was justified, given the vulnerability of groundwater resources to pollution and other external activities.  The definition of the utilization the aquifer or aquifer system had also been broadened to include the extraction of water, as well as of thermo-energy, minerals and the disposal of waste; however, the current articles focused only on water resources.

Continuing with chapter IV, he said the principle of equitable and reasonable utilization of water resources was central to the law on the matter.  While draft articles 7, 8 and 9 specifically addressed State cooperation on the issue, he said article 9, in particular, encouraged States to enter into bilateral or regional agreements or arrangements in order to better manage aquifers.  On article 15, he said it did not have detailed provisions and mechanisms, because it was purposely intended to allow States flexibility to fashion appropriate mechanisms to best suit the peculiarities of their aquifer and aquifer systems.

The last four draft articles, he noted, addressed scientific and technical cooperation with developing States; establishing specific notification and cooperation requirements during emergency situations; protection of aquifers during armed conflicts; and addressed data and information concerning national defence and security.  However, the Commission had excluded provisions concerning the settlement of disputes, as well as on the relationship between the draft articles or future binding instruments, including the 1997 Watercourses Convention.

Commenting on the conclusion of the draft articles, he said he was “acutely aware of the relative dearth of State practice” in this field.  However, in the past six years, there had been heightened awareness and understanding of the subject.  States were now taking a comprehensive cooperative approach to utilization, protection and management of water resources.

Turning to chapter V on “the effects of armed conflicts on treaties”, he said draft articles 1 and 2 included, within their scope, ratione materiae both to treaties between States which were parties to a conflict or armed conflict, as well as those between States party to a conflict and third States.  However, the Commission excluded treaties involving international organizations from the scope of the articles.  The provision recognized, in particular, that an armed conflict might affect the obligations of parties to a treaty in different ways.  Thus, draft articles 3, 4 and 5 were in favour of the legal stability and continuity of treaty relations.  The Commission excluded from these provisions the question of the possibility of withdrawal from a treaty, since that involved a conscious decision by a State.

On whether a particular treaty was susceptible or not to termination, withdrawal or suspension, he said article 4 listed two sets of indicia:  those being established in articles 31 and 32 of the Vienna Convention on the Law of Treaties of 1969, and a new category on “the nature and extent of the armed conflict, the effects of the armed conflict on the treaty, the subject-matter of the treaty and the number of parties to the treaty”.   In particular, article 5 recognized that there were some types of treaties that would continue in operation, despite the realization of an armed conflict.  Recognizing that some of the treaty categories were “cross-cutting”, he said the expository list of these categories was moved from paragraph 2 of the article to an annex to the articles.

Proceeding with his review of chapter V, he said draft articles 6 and 7 reflected the fact that States may, even in times of armed conflict, continue to have dealings with one another.  These two provisions should, therefore, be read in sequence.  Draft articles 8 to 12, which were based on their equivalents in the Vienna Convention, dealt with a number of ancillary matters on the termination, withdrawal and suspension of treaties.  Draft article 8, in particular, established a basic duty of notification of termination, withdrawal or suspension, while recognizing the right of another State party to raise objection.  Draft article 9 sought to preserve the requirement to fulfil an obligation under international law, which might be otherwise terminated through the suspension or termination of a treaty.  Draft articles 10 and 11 provided for the possibility of “separability” of treaty provisions, while article 11 provided for the loss of the right to terminate, withdraw from or suspend the operation of a treaty.

He said draft article 12 of charter V indicated that the question of resumption would have to be resolved on a case-by-case basis.  Finally, draft articles 13 to 18 dealt with the existence of armed conflict and other fields of international law, including the obligations of States under the Charter of the United Nations.  For instance, the fourteenth draft article preserved the legal effects of Security Council decisions taken in accordance with Chapter VII of the Charter, while article 15 was intended to prohibit an aggressor State from benefiting from ending a treaty as a consequence of the armed conflict it had provoked.  The last three draft articles dealt with remaining matters, such as:  preserving the rights and duties arising from laws of neutrality; dealing with the question of termination, withdrawal or suspension of a treaty by operation of the Vienna Convention; as well as providing for the revival of treaty relations subsequent to an armed conflict.

Expressing gratitude to Ian Brownlie, the former Special Rapporteur on the topic of the effects of armed conflicts on treaty, the Chairman said that when the Committee resumed its second reading of the draft articles, it would be with a new Special Rapporteur for the topic.

Statements

ROLF EINAR FIFE (Norway), speaking for the Nordic countries on the topic of shared natural resources, said it was regrettable that financial restraints impeded the ability of all Special Rapporteurs to be present during deliberations of the Commission’s report.  Also, to make the Commission’s questions to States more “user-friendly”, the background for the questions on which response was requested should be included.  The Commission’s increased interaction with other legal bodies was welcome, as were changes in work methods and the inclusion of the two new topics on the Commission’s agenda.

On the question of shared natural resources, he said the adoption of the draft articles on transboundary aquifers was welcome.  However, the articles still should reflect the principle that it was particularly important that States not cause harm to other aquifer States.  The threshold of “significant” harm in articles 6 and 12 was too high and uncalled for.  Further, a reference to the precautionary principle, instead of the precautionary approach, would be preferable in article 12.  The two-part approach towards an instrument was appropriate.

With regard to transboundary oil and gas reserves, he said the management challenges related to those resources were quite different from those for aquifers.  The complicated issues had been adequately addressed in bilateral relationships for years, and did not seem to cause insurmountable problems in practice.  The commercial aspects involved provided an incentive for cooperation and the finding of practical solutions that would benefit all parties.  It would be more productive for the Commission to note the existence of those arrangements, than to engage in further codification.

MARCUS LAURENT (Finland), speaking for the Nordic countries on the topic of effects of armed conflicts on treaties, said he welcomed the formulation of articles 1 and 4 in a manner that they applied also to the effect of an internal armed conflict on the treaty relations of the State in question, since internal armed conflicts would affect the operation of treaties as much as international conflicts.  The term “armed conflict” in article 2 and the commentary ought to be drafted with closer regard to the nature of contemporary armed conflicts.

Further, he said article 5 concerning situations in which the subject matter of a treaty implied that the operation of the treaty as a whole, or some of its provisions, were not affected by an armed conflict, should also note that there were situations in which the execution of the treaty or some provisions could be put on hold for the duration of an armed conflict.  As the International Court of Justice had advised with regard to environmental treaties, some basic treaty principles needed to be taken into account during armed conflict, while it could be unreasonable to require compliance with the whole treaty or some of its provisions as such.

He said environmental treaties were mentioned in the annex to the draft articles.  This included an indicative list of categories of treaties, the subject matter of conflict involved the implication that they would continue in operation during an armed conflict.  The usefulness of such a list was questionable.  Rather, a case-by-case consideration was more appropriate.  The mention of specific treaties should be moved from article 5 to the commentary.  The relationship between articles 5 and 10 should be further studied, as should the structure of article 10.

KONRAD BŰHLER ( Austria) said it would not be timely to decide now on a final form of the draft articles on transboundary aquifers.   Rather, he supported a two-step approach towards concluding a legal regime on the matter.  Citing the Commission’s 2006 report, when the draft articles on the matter were first discussed, he called for clarification on a number of relevant issues; in particular, article 4 on issues of accrued benefits and maximizing long-term benefits.  He said provisions on bilateral and regional agreements towards managing transboundary aquifers also needed to be clarified, noting that a joint management mechanism was only one possibility for bilateral or regional cooperation.

Turning to the effects of armed conflict on treaties, he said the articles dealing with the context for terminating, suspending or withdrawing from treaties should deal only with international armed conflicts; a broader scope would be unmanageable.  The draft articles, he said, were based on “overly complex criteria”.  For example, while armed conflict was defined by its likelihood to affect treaties, the susceptibility of treaties to withdrawal, suspension or termination was subject to the nature of the treaty.  The definition of armed conflicts, as set out in the draft articles, was, therefore, a circular one, which would not lead to any specific result.   He also called for further clarification, in draft article 16, on the relationship between belligerent and non-belligerent State parties to treaties and how third States were affected by armed conflicts.

He said he welcomed the Commission’s discussion on promoting the rule of law at the national and international level; this discussion constituted “the essence of the Commission”.  In that regard, the Commission could adopt a more dynamic role with more specific issues to be taken up by the Sixth Committee.

VIKTOR POPKOV (Belarus), taking up the effects of armed conflicts on treaties, said this issue was not duly reflected in the 1969 Vienna Convention on the Law of Treaties and other applicable laws.  Thus, the matter entailed a range of problems for parties to treaties and third States.  The Commission must prepare progressive recommendations to deal with these problems.

In particular, he said, he supported the view that armed conflicts could not automatically lead to the suspension of international treaties.  When there existed the Charter of the United Nations and other relevant international conventions, such automatic resumption would be presumptuous.  Treaties had to be upheld, unless “insurmountable circumstances” existed.  Justification for terminating a treaty was framed by the indicators listed in draft article 4; these had to function as the basis for suspending, withdrawing from, or terminating a treaty.  However, the stability for treaty relations between States and third countries could be jeopardized by the arbitrary application of the indicators.   Therefore, criteria could be added to the draft articles about the intensity and length of conflicts.  Only a conflict of significant length could make it impossible to carry out the bulk of international treaties, he said.

Regarding the list of treaty categories annexed to the report, he said the preservation of treaties such as the United Nations Charter, those preserving humanitarian law and human rights, constituent treaties of international organizations, and those dealing with State boundaries and international legal regimes needed to be ensured.  He also said leaving open the consequences of objection to a treaty would also leave ambiguity; there should be discussion of the feasibility of extending the draft articles to treaties involving international organizations.

MIRIAM DEFENSOR-SANTIAGO (Philippines) said that explicitly or implicitly, the draft articles covered non-aquifer States with their regulatory force only in specific instances when a State’s territory was in a discharge or recharge zone; when a State was involved in a planned activity, when it was charged with the obligation to promote cooperation with developing States; and when an emergency arose on the State’s territory.  With regard to the articles related to prevention, reduction and control of pollution, the way in which the principle acquired limitation by significantly not including neighbouring non-aquifer States may require an explanation, since the earlier draft articles dealt with non-aquifer State activity and possible effects on aquifers or aquifer systems.

In relation to the term “aquifer state” as defined by articles 2 and 3, she said consideration should be given to the rare instance in which submarine cables and pipelines entered the territorial sea or the State territory itself.  The laying of such cables and pipelines could prove even more significant for the purposes of protecting aquifers or aquifer systems in the territorial sea or in the archipelagic waters of mid-ocean archipelagos.  The situation did not appear to be within the regulatory concern of the draft articles, in particular in relation to how responsibility could be attributed.

She said the articles should be appended to a resolution for the use of States in entering into bilateral or regional arrangements.  Consideration should be given to the concept of sovereignty over shared freshwater resources and the impact of the draft articles on the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses.

SEUNG-HYUN HWANG ( Republic of Korea) said the Commission must be careful not to take on too many topics, but it should take up questions related to legal aspects of the Internet use.  The Commission’s work in relation to the protection of people in disasters, and to shared natural resources was particularly welcome.  A two-step approach should be adopted with regard to the articles on aquifers, and States should be given latitude in applying them.  They should have the option to make arrangements and to consult the articles as they saw best in light of customary law.  Also to be noted, the articles as formulated imposed burdens on non-aquifer States.   The natural resources of oil and gas were not the same as aquifers and should not be treated in a similar fashion.

Further, he said the annex on treaties should allow States some discretion, and he mentioned situations when the use of force was justifiable under international law.  It should also be kept in mind, he added, that the articles were intended to support the applicability of treaties under situations of armed conflict.  More discretion should be allowed States in suspending treaties.  Finally, the Commission was the only body entrusted with codifying international law; it was gratifying to see the strengthening of the Commission’s cooperative and consultative arrangements with other international legal bodies such as the International Court of Justice.

PAULO ROBERTO TARRISSE DA FONTOURA ( Brazil) said the first and second readings of the articles on shared natural resources had been accomplished in a fairly short period of time.  Work on the subject should be directed towards the establishment of generic principles to guide States in negotiating regional agreements of a more specific nature, to avoid the risks of elaborating a text that would not gather broad consensus for being too ambitious, and with too many technical and legal details.

Further, he said the principles should be sufficiently flexible and balanced to guide general cooperation, regarding where the transboundary aquifers were located.  The aim should be to provide for the best advantage of the aquifers in an equitable manner and according to aquifer characteristics.  Multiple situations and regional realities required that the articles recognize the primacy of regional agreements as the most appropriate to regulate cooperation on transboundary aquifers.  His country’s position on the final form the articles should take was still under consideration.

DANIEL BETHLEHEM ( United Kingdom) said he would be responding on questions posed with regard to protection of persons in the event of natural disasters, and looked forward to the responses of the United Nations and of the International Red Cross and Red Crescent Societies on the matter.  Immunity of State officials from foreign criminal jurisdiction was also a matter of great interest.

He said his country was not directly affected by the Commission’s work on the question of shared natural resources and aquifers, but he had been following it.  The articles should be annexed to a resolution for the use of States in bilateral and regional arrangements.  A convention could be considered later.  States should cooperate and reach agreement on the division or sharing of cross-boundary shared oil and gas sources.

With regard to the effects of armed conflicts on treaties, he said article 12 described how the resumption of the operation of a treaty suspended as a result of armed conflict should be determined, but it left unclear whether the decision to resume the treaty’s operation was the unilateral decision of the suspending party, or whether the other parties to the treaty were also involved.

GEORG WITSCHEL (Germany), taking up the matter of shared natural resources, said that given the potential of conflicts which could arise from matters concerned with transboundary aquifers, an international convention or declaration on the issue would be a unique step.  The general principles of articles 3 to 8 in the Commission’s report were clear improvements on the manner of resource utilization, to date, firmly upholding the principles of cooperation and coordinated utilization.

On its own transboundary groundwater, he said, Germany met the requirements outlined in the Commission’s draft articles, since it was bound by the European Union Water Framework Directive and the “Groundwater Daughter Directive”.  It was important, however, to ensure that data exchange and information, as provided for in draft article 8, did not entail an excessive workload for concerned States.  In addition, he went on, groundwater should be considered separately from oil and gas deposits, even if some geological factors would suggest joining them.  The geological approach to the matter completely ignored social and economic implications, which played an important role.  Furthermore, oil and gas deposits were usually found at much greater depth than groundwater deposits, making comparisons even more problematic.  To conclude his comments on the topic, he offered observations and amendments to article 2, 5, 7 and 13.

Turning to chapter XII of the Commission’s report, he said he was pleased with the inclusion of “treaties over time” in the Commission’s long-term work programme, and the establishment of a study group to that end.  He also welcomed the Commission’s efforts to enhance its relationship with the Sixth Committee.  Such cooperation, he said, formed a natural basis for developing international law.  Therefore, he appreciated the comments and reform proposals made in the Commission’s report, noting that good coordination and cooperation could not be achieved without active contributions from States.  Furthermore, detailed preparatory meetings of the legal advisers on points selected in advance would increase efficiency.  Such proposals should not lose sight of the importance of the contributions of States to the development of international law, and to the work of the Commission and the Sixth Committee.

PAUL SEGER(Switzerland), commenting on the issue of the effects of armed conflicts on treaties, and discussing articles 1 and 2, said internal conflicts, and not just international conflicts, should be included in the definition of “armed conflicts” in relation to their effects on treaties.  As to the categories of treaties, as listed in the annex of the report, he recommended adding to the list those dealing with international criminal law.  He said international criminal law fell under the auspices of international humanitarian law and human rights law, and defined international crimes.  It set out responsibility for those crimes, as well as a system for prosecution.  He said the nature of international criminal law implied that it should apply during armed conflicts.

He said the clauses which the report said should be considered were justified and important.  In particular, irrational obligations arising from laws of neutrality were particularly important.  Furthermore, making a distinction between treaties dealing with belligerents and those involving third States was appropriate.

VALERIO ASTRALDI ( Italy), addressing the Commission’s work on chapter IV of the report, said the draft articles would increase awareness of the problems involved in regulating transboundary aquifers.  However, since the solutions outlined in the articles were general in nature, States would need to agree on necessary specifications to give their transboundary aquifers effective protection, and provide for the equitable apportionment of resources.  While the adoption of a convention based on these draft articles would probably not raise major difficulties, it was not certain that it would add much value.  While the Commission suggested the General Assembly consider the elaboration of a convention at a later stage, it was preferable that the General Assembly “not leave the question in abeyance”; rather, the Assembly should make a decision on the final outcome of the articles at its present session.

Turning to the effects of armed conflicts on treaties, he said it was reasonable that armed conflicts did not, per se, affect the operation of treaties, but also that they did not rule out that in certain cases, the effects of those treaties would cease.  He called for clarification of article 7, also pointing out that solutions were not necessarily going to be identical when two State parties to the treaty were involved in an armed conflict, or when only one State party to the treaty and a third State were involved.  This begged the consideration of how two States involved in an armed conflict who were on the same side would be handled.  On the “separability of treaty provisions”, he said further clarification was needed as to when certain types of treaties should remain in operation.  Furthermore, to complete its work on the matter, the Commission should make a more thorough examination of relevant State practice, particularly national judicial decisions.

SHAIFI AL OTAIBI (Saudi Arabia), speaking on transboundary aquifers, said issues such as the banning of “directional slant and horizontal drilling”, the direction in flow of groundwater, and variations between States were not effectively addressed in the draft articles.  On other issues which he said needed clarification, he commented that the draft articles did not distinguish between desert and dry areas and those rich in groundwater.  It was important, he added, to have priorities for the use of groundwater as drinking water.  There was also a need for a mechanism for exchanging information on State practice concerning transboundary aquifers.  Finally, while in the Commission’s report, the definition of transboundary aquifers included aquifers and aquifer systems, some articles -- including article 6, paragraph 2; article 7, paragraph 2; and articles 8 and 9 -- excluded aquifer systems from their scope.

JAROSLAV HORÁK ( Czech Republic) said it was difficult to build a broad consensus for a binding international convention on the subject of transboundary aquifers because of the broad range of views and customs.  Concerns about failure were heightened by the fate of the 1997 convention related to watercourses, which had not yet been ratified.  Nevertheless the articles should eventually be given a legally binding form.  In the meantime, hopefully the largest possible number of States would use the articles as guidance for new international treaties to facilitate reasonable and equitable utilization of transboundary aquifers.

Moving on, he said the purpose of the articles on the effect of armed conflict on treaties was to support the Vienna Convention on the Law of Treaties.  The articles, therefore, should not deal with treaties concluded by international organizations, especially since international organizations did not usually participate in armed conflicts.  The provision on the definition of armed conflict should be included in the draft articles because the term belonged in the sphere of international humanitarian law and had been clarified.  Also, a separate definition of an armed conflict in treaty law could contribute to the controversial trend of fragmentation of international law.  Finally, the scope of the articles should not be restricted to situations of international conflict.

* *** *

For information media • not an official record