Sixth Committee Speakers Remain Undecided about Best Use of Draft Texts on Transboundary Harm from Hazardous Activities, Allocation of Loss
Delegates Conclude Debates on Law of Aquifers, Diplomatic, Consular Protection
Spotlighting the significant effects of transboundary hazardous activities, Sixth Committee (Legal) delegates debated the necessity of developing an international legal framework based on the draft texts on the prevention of transboundary harm from hazardous activities and the allocation of loss in the case of such harm, or keeping those texts as non-binding measures that provide standards of conduct for States.
The Sixth Committee had before it the Secretary-General’s reports, “Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm” (documents A/77/147 and A/77/148).
The representative of Antigua and Barbuda, speaking for the Alliance of Small Island States, said that while States have yet to decide whether to elaborate a convention based on the drafts, there needed to be greater clarity on obligations in the context of overlapping environmental crises. Despite contributing very little to marine waste, the Alliance’s countries were significantly affected by the hazards of transboundary harm. “It is inequitable, and frankly unjust, to expect that small islands use their relatively small national budgets to respond to and remediate the effects of transboundary harm caused by others,” she stressed.
Echoing that stance, the delegate of the Federal States of Micronesia underlined every State’s obligation under international law to take all necessary measures to prevent physical harm by hazardous activities conducted by it on another country’s environment, people or property. While his country was open to the elaboration of a convention incorporating the draft articles and principles, States must continue to regulate transboundary harm in the absence thereof, he stressed.
In that regard, the representative of Egypt, emphasized the need for a legal framework that would specify the legal rules governing transboundary harms caused by legitimate projects and the compensation for such damage, be it economic, social or even environmental. He thus voiced support for a binding international convention based on the respective draft articles and principles.
Contesting this point of view was Türkiye’s representative, who noted that the draft articles and principles would better serve their purpose as documents of a guiding nature that provide standards of conduct for States. This would allow for the necessary flexibility for States to practice and develop related laws. Therefore, the draft articles and principles should be preserved in their current non-building form, he said.
The Sixth Committee also began its consideration of the International Law Commission’s draft articles on the law of transboundary aquifers, as delegates discussed the texts’ development and further codification governing these transboundary mechanisms.
The representative of Brazil, also speaking for Argentina, Paraguay and Uruguay, said that the draft articles provided a set of principles and basic norms to harmonize the use of subterranean water deposits that cross international borders. In this regard, the four countries signed the multilateral agreement on the transborder Guarani Aquifer — the first document of its kind — which represents a significant contribution of the region to the topic.
Cameroon’s representative, spotlighting the significance of transboundary aquifers, called them a “vital source of wealth for present and future generations”. Recognizing that water lies at the heart of all development issues, he insisted that cooperation between the States of the aquifer is a precondition for the sharing of natural resources. Moreover, in the context of increasing water scarcity, it was essential to have legal instruments to improve its governance.
Reflecting this position, the representative of Portugal said that the draft articles are compatible with European Union law and include provisions establishing a framework for community action protecting groundwater against pollution and deterioration. Underscoring the importance of developing transnational aquifers law, he supported its potential evolution in a convention.
The Sixth Committee also concluded its debate on the protection of diplomatic and consular missions and representatives, as speakers considered new and emerging threats to safety and security of diplomatic and consular officials and presented national best practices to tackle these threats. (For background, see Press Release GA/L/3665.)
The representative of the Russian Federation said that her country’s diplomatic and consular missions fell victim to unlawful acts, including threatening phone calls, emails with insults and acts of vandalism. The deadly explosion that occurred near the entrance to the Russian Federation’s embassy in Kabul, killed two members of staff, as well as killing and injuring Afghan citizens, she reported.
In a different vein, the representative of the Netherlands spotlighted cyberthreats as a new challenge for security and safety of diplomatic officials. Due to more frequent storing of official documents in “clouds”, she underscored the need to protect diplomatic premises from intrusion or damage, which can also come from cyberthreats. She urged States to share effective measures that enhanced security and safety of diplomatic and consular missions in this regard.
Ghana’s representative concurred on that point, adding that terrorism, cyberattacks and the impact of the COVID‑19 pandemic on the conducting of diplomatic relations also called for rethinking of conventional protection measures in order to keep up with emerging threats. She urged all diplomatic representations to communicate through the formal channels with the receiving Governments, in order to properly preserve the immunities and privileges of diplomatic and consular agents.
Also speaking on the consideration of effective measures to enhance diplomatic protection were representatives of Equatorial Guinea, Japan, Belgium, Algeria, Brazil, Eritrea, Türkiye, Azerbaijan and Nigeria.
Speaking on the consideration of prevention of transboundary harm were representatives of New Zealand (also for Australia and Canada), Iran, United States, Mexico, El Salvador, Portugal, Sierra Leone, Cameroon, Russian Federation, Malaysia, Chile and Algeria.
Also speaking on the law of transboundary aquifers were representatives of the United States, Mexico and El Salvador.
The Sixth Committee will next meet at 10 a.m. on Thursday, 20 October, to conclude its debate on the law of transboundary aquifers and begin consideration of the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law.
Protection of Diplomatic and Consular Missions and Representatives
ANNA V. ANTONOVA (Russian Federation) said that on a national platform, an attack on a representative of a foreign State or employee of an international organization, or an official or residential premises or vehicle, was a crime punishable by two to six years of imprisonment. The same act committed for the purpose of provoking war or hindering international relations was punishable by imprisonment of five to 10 years. She noted that there have been over 150 cases of unlawful acts on Russian Federation diplomatic missions. Reporting that her country’s missions receive threatening phone calls and emails with insults almost daily, she spotlighted a recent attack on the building of the Consulate General in New York, which was splashed with red paint. She also highlighted the unauthorized and illegal seizure and retention by the United States authorities of her country’s real estate and offices that constitute parts of its missions. Further, she recalled the deadly explosion that occurred near the entrance to the Russian Federation’s embassy in Kabul, killing two members of staff, as well as killing and injuring Afghan citizens.
ESTELA MERCEDES NZE MANSOGO (Equatorial Guinea), associating herself with the Non-Aligned Movement and Group of Friends in Defense of the Charter of the United Nations, noted with concern the ongoing violations of consular and diplomatic missions and their respective representatives. Condemning these acts, she called on States to continue taking preventative measures to protect respective premises. She also invited all States involved in disputes related to their obligations in the area of protecting diplomatic and consular missions to resolve them peacefully and refrain from the use of force. In parallel to this, she encouraged the diplomatic and consular representatives accredited before a State to respect the laws and obligations of the host country and refrain from interfering in internal affairs or allowing the diplomatic missions or offices to be used for purposes unrelated to their primary functions.
BEATRICE EFFAH (Ghana), noting the increasing security and safety violations against diplomatic and consular missions, as well as representatives, called for enhanced cooperation at the national and international levels to strengthen prevention and protection measures. Terrorism, cyberattacks and the impact of the COVID‑19 pandemic on the conducting of diplomatic relations also called for constructive dialogue and a rethinking of conventional protection measures in order to keep up with emerging threats while preserving the customary norms of the inviolability of diplomatic missions and representatives. On a national level, the Diplomatic Protection Unit under the Ghana Police Service works to ensure the protection, safety and security of diplomatic and consular missions, as well as representatives, in the country. As security threats widen in range and complexity, sending States must also enhance security awareness and responsiveness of their personnel to help mitigate risk. She urged all diplomatic representations to communicate through the formal channels with the receiving Governments, in order to properly preserve the immunities and privileges of diplomatic and consular agents. Further, she encouraged States that have not already done so to become parties to the international instruments relevant to the security and safety of diplomatic and consular missions and their representatives.
SHUNSUKE NAGANO (Japan) said that the receiving States must fulfil their obligations to take all appropriate steps to protect against any intrusion on or damage to diplomatic and consular missions, and prevent any attack on the freedom or dignity of diplomats and consular officials. In addition, receiving States must fully respect the privileges and immunities of diplomatic and consular missions, as well as diplomats and consular officials, as stated in the Vienna Conventions. In particular, the infringement of privileges and immunities that diplomats and consular officials enjoy under the Vienna Conventions can never be justified. Personal inviolability of diplomats and consular officials was at the core of the principle of such privileges and immunities. Therefore, compliance with the obligations under the Vienna Conventions was a basic prerequisite for the normal conduct of diplomatic relations among States. His Government was committed to the protection, security and safety of diplomatic and consular missions and representatives, he emphasized, calling upon all United Nations Member States to renew their commitment to protect diplomats and consular missions, as well as representatives.
ELISA DE RAES (Belgium), aligning herself with the European Union, pointed out that her country hosts a number of diplomatic missions and consular posts on its territory, as well as the offices and headquarters of a number of international organizations. Belgium therefore attaches particular importance to the protection of diplomatic and consular missions and representatives. Respecting international law in this area — specifically the Vienna Conventions on Diplomatic and Consular Relations — was vital to smooth relations between States. She stressed that the principles and rules of international law governing diplomatic relations are applicable under all circumstances, including during times of crisis or armed conflict. She expressed concern over certain measures imposed by some States in the context of the COVID‑19 pandemic, underlining the need to strike a balance between the obligation of diplomats to respect the laws of host countries and the duty of such countries to facilitate the functioning of diplomatic missions.
MOHAMED FAIZ BOUCHEDOUB (Algeria), associating himself with the Non-Aligned Movement and the Group of Friends in Defense of the Charter of the United Nations, said that diplomacy is the cornerstone of strengthening inter-State cooperation based on dialogue, mutual respect and goodwill. As such, all States must protect diplomatic and consular missions and representatives, pursuant to the Vienna Conventions on Diplomatic and Consular Relations. This is a priority for Algeria, which has taken all legal and security measures to bolster the safety and security of such missions and representatives, as well as those who enjoy diplomatic status relating to their association with intergovernmental organizations. While Algerian law also guarantees respect for privileges and immunities, he underscored that those who enjoy the same must respect the rules and laws of host States and adhere to a code of conduct. He added that no violation or incident against such missions or their representatives has ever taken place in Algeria.
VICTOR SILVEIRA BRAOIOS (Brazil), citing the Vienna Conventions, stressed that archives and documents were inviolable at all times. The International Court of Justice, and case law of both national courts and arbitral tribunals applying international law, also clarified that this inviolability is absolute. Additionally, the Conventions clearly establish the receiving State’s duty to enable the free communication of diplomatic and consular missions for all official purposes. Therefore, in order to communicate with their headquarters or other posts, diplomatic and consular missions may employ “all appropriate means”. Pointing out that information technology has evolved, he noted that the flow of communication is no longer dependent on physical support but can circulate through technologically sophisticated channels. Archives and documents in general, and diplomatic cables in particular, exist not only on paper, but also on digital platforms. Regardless, it remains beyond doubt that the absolute inviolability of the Vienna Conventions remains fully applicable. A contrary view would risk jeopardizing sovereign equality and the main purpose of diplomatic and consular relations: to develop and strengthen friendly relations among States. It is thus clear that diplomatic and consular communications, archives and documents enjoy protection both offline and online.
AMANUEL GIORGIO (Eritrea), associating himself with the Non-Aligned Movement and the Group of Friends in Defense of the Charter of the United Nations, said that, as a State party to the Vienna Conventions, Eritrea attaches great importance to the fulfillment of its obligations set out in the two instruments. Compliance not only ensures a smooth functioning of diplomatic duties but also the promotion of better and friendlier relations among States. He noted with grave concern serious breaches of international law that threaten the security and safety of diplomatic and consular professionals. He also expressed concern regarding the serious impediments brought about by the imposition of unilateral and coercive measures. Such measures are contrary to the norms and principles governing peaceful relations. These “aggressive illegal measures” pursued as foreign policy by some powerful States against other Member States must be removed immediately, he stressed.
BAŞAK AYDIN GUCCIARDO (Türkiye), noting that threats and attacks against diplomatic and consular missions and their representatives continue around the world, pointed out that Türkiye’s missions and representatives were targeted in different ways during the reporting period. The responsibility to protect such premises and personnel lies primarily with the host country or with the State to which representatives are accredited. It was important for States to continue sharing information about any measures needed or already taken to enhance such protection, including information on proceedings undertaken to bring offenders to justice, as well as on the outcome of those proceedings. On the other hand, it was also imperative that diplomatic and consular premises not be used in any manner incompatible with their functions and that their personnel respect the laws and regulations of the receiving State. As a country that had lost many diplomats to assassinations committed by terrorist organizations and other violent groups in third countries, this topic carried a special weight for Türkiye. Indeed, she recalled that Türkiye supported the inclusion of this item in the General Assembly’s agenda back in 1980, when such attacks had already taken the lives of 15 members of its diplomatic service.
TOFIG MUSAYEV (Azerbaijan) said that the diplomatic and consular missions and representatives of his country were targeted by radical members of Armenian communities in several countries. The attacks involved acts of vandalism and aggressive and insulting conduct. In most of those incidents, measures taken by the receiving States to prevent violence and ensure the protection and security of the diplomatic and consular missions and their staff were either insufficient or futile. He also noted that not a single perpetrator was held accountable for the violations against the diplomatic and consular missions and representatives of Azerbaijan. Impunity encouraged the same radical communities in different countries to resort to new threats and provocations. As in previous instances, Azerbaijan’s diplomatic missions have continued to face similar inadequate prevention, protection and accountability measures. The resolution of the General Assembly is very clear in stating that States have the duty to take timely measures for the prevention of any acts of violence against diplomatic and consular missions and representatives, and to ensure that offenders are brought to justice, he pointed out.
WIETEKE ELISABETH CHRISTINA THEEUWEN (Netherlands), associating herself with the European Union, noted that the Netherlands has not taken measures that infringe on the rights of diplomats and consular missions in her country. Recognizing that the COVID‑19 pandemic created challenges to the functioning of diplomatic institutions, she said that some measures imposed by other States, including the imposition of quarantine for diplomatic officials in a location other than their home, were considered unacceptable. She also spotlighted that cyberspace constitutes a challenge for security and safety of diplomatic officials, as more official documents are being saved in “clouds”. In this regard, she underscored the need to protect diplomatic premises from intrusion or damage, which can also come from cyber threats. She further encouraged the States to share their views on cyberspace and effective measures to enhance security and safety of diplomatic and consular missions in this regard.
MAUREEN TAMUNO (Nigeria) said that a robust system of rules in relation to diplomatic protection remains an important asset for Member States. She expressed concern that diplomatic and consular officials still encounter risks and hazards in the course of their duties. In this context, she called on receiving States to adhere to international best practices. Reiterating her country’s commitment to adhere to the principle of inviolability, she said that the Government has taken all the necessary measures, including by providing armed security guards to safeguard all diplomatic and consular missions in the country. Effective policing has been ensured and a designated area for diplomatic missions and residences has been allocated as a “diplomatic zone”. Further, a special diplomatic protection unit was created under the inspectorate of the national police to provide stand-by security during emergencies, distress calls and any alarm signals. In addition, among other things, diplomats and consular officials travelling outside the capital on official duties are provided adequate protection, including special police escorts.
Prevention of Transboundary Harm from Hazardous Activities
ASHA CECILY CHALLENGER (Antigua and Barbuda), speaking for the Alliance of Small Island States, pointed out that the International Law Commission completed its work many years ago on the draft articles on the prevention of transboundary harm from hazardous activities, and the draft principles on the allocation of loss in the case of such harm. While States have yet to decide whether to elaborate a convention based on these products, she underlined the need for greater clarity on States’ obligations in the context of overlapping environmental crises. Small island developing States are especially affected by transboundary harm, and such harms with anthropogenic causes — including plastic pollution, the effects of climate change and sea-level rise — have and will continue to alter every aspect of life for the citizens of such States.
Against that backdrop, she underscored that the draft articles and principles — along with customary obligations in this area — must be interpreted in light of the general principle of equity in international law. Small island developing States contribute less than 1 per cent of all global production of fossil fuels, and their share of marine plastic waste is estimated to be less than 1.3 per cent. However, the adverse effects of climate change, sea-level rise and plastic pollution disproportionately affect such States’ industries, infrastructure, health and culture. “It is inequitable, and frankly unjust, to expect that small islands use their relatively small national budgets to respond to and remediate the effects of transboundary harm caused by others,” she stressed.
NORHAN EL SANJAK (New Zealand), also speaking for Australia and Canada, highlighted that international, regional and domestic courts have been referring to the draft articles on the prevention of transboundary harm from hazardous activities, and principles on the allocations of loss in the case of transboundary harm arising out of hazardous activities. This demonstrated their relevance and significance. She underscored that the best way to ensure the progressive development of international law in this important area was for the articles and principles to remain in their current form, as authoritative guidance and clear and comprehensive standards for all States to follow. “There is little to be gained from attempting to transform the articles and principles into the form of a convention,” she said.
She went on to say that, as those texts stand, they both informed and encouraged national and international best practice, and enjoyed widespread support among Member States. Further, they were consistently being invoked in discussions between Member States in bilateral and multilateral forums, and in national and international courts and tribunals. The texts also represent a significant contribution to the achievement of a consistent, coherent and widely supported international framework for the prevention of transboundary harm from hazardous activities, and the allocation of loss. To that end, she urged Member States to continue to be guided by the draft articles and the principles.
MOHAMMAD SADEGH TALEBIZADEH SARDARI (Iran), noting that transboundary harm might grow, especially due to climate change and environmental degradation, said that countries should act in a manner based on recognized international settings and practices, as well as applicable general principles. In the absence of specific rules imposing liability and allocating loss, States should also observe due diligence in order to prevent or minimize transboundary harm. Cooperation and coordination, as well as exchanging information among countries, especially between neighbouring countries, are essential. He voiced support for the proposal on enhancing international cooperation to build the scientific and technical capacities of developing countries in order to help them prevent such harm. Among other things, he noted that the definitions of the term “damage” and of what constitutes “significant” damage are open to interpretation and therefore controversial. In that context, draft principles 6 and 7 are significant in that they could encourage States to improve the existing legal arsenal to prevent and provide remedy for transboundary harm, and pave the way for more harmonized compensation. Further, the draft articles and draft principles still require further consideration and study by taking into account State practices, he added.
DAVID BIGGE (United States) said the draft articles and draft principles are positive, innovative steps towards addressing transboundary harm. As both documents were designed as resources to encourage national and international action in specific contexts, he expressed support for retaining them in their current form. The draft articles in particular must be regarded as non-binding standards to guide the conduct and practice of States, he emphasized.
NATALIA JIMÉNEZ ALEGRÍA (Mexico) highlighted the importance of establishing a binding regime governing the prevention of transboundary harm from hazardous activities, and the allocation of loss in the case of such harm. The draft articles and principles on this topic should provide a clear definition for what constitutes “sensitive damage to the environment”. That would serve to both define the scope of application and highlight the importance of ensuring reparations for transboundary harm. Further, the term “allocation of loss” should also be reformulated to allocate responsibility strictly to the exploiter, which can then be adjusted based on instruments relating to civil liability. She also underlined the need to review the concept of transboundary harm generated in zones beyond national jurisdictions, particularly in the deep sea. Rapid, adequate indemnification must be ensured to those suffering harm in such situations. Pointing out that submarine mining activities must be considered hazardous activities that could create transboundary harm, she called for the development of a framework for indemnification and reparations in this regard.
AHMED ABDELAZIZ AHMED ELGHARIB (Egypt) said that the obligations not to cause significant harm and to take the necessary measures to eliminate or mitigate damage constitute established customary rules that govern projects with transboundary impacts. In this regard, he stressed the importance of assessing the environmental and social impacts of transboundary projects to avoid potential serious damage that could be caused by those projects. Voicing his support for a binding international convention, he stressed: “We are convinced that we do need a legal framework that specifies the legal rules governing transboundary harms caused by legitimate projects and the compensation for such damage.” Such damage could be economic, social or even environmental, and may impact the lives of communities in the countries concerned. This also could cause damage to public health, agriculture, water resources and ecosystems. In addition, he called for a clear definition for the phrases “physical and material consequences” and “physical harm”.
LIGIA LORENA FLORES SOTO (El Salvador) emphasized that “protecting the environment makes it possible to systematically provide other guarantees, such as freedom, equality, and the enjoyment of living conditions”. It was critical to recognize and apply conventional instruments and norms of international customary law in order to guarantee compliance with the principles of international law in the area of the environment. She spotlighted the advisory opinion of the Inter-American Court of Human Rights on the environment and human rights, which noted a consensus regarding the obligation for prevention. She also said that the development of international binding instruments can create greater legal certainty and precision regarding concepts contained in the draft articles and principles. As a result, the international community can clarify the obligations of States in regard to preserving and respecting the environment. Nonetheless, discussions in the Sixth Committee on this topic have not yet reached a point of desirable convergence. However, that should not be an excuse for not addressing the topic, and even less for not addressing practical means for providing incentives to deal with the matter.
SERGIO AMARAL ALVES DE CARVALHO (Portugal) recalled that the International Law Commission recommended the draft articles and principles be elaborated into a convention. “Sadly, we remain far away from following up on these recommendations,” he said. In light of the progressive development of international law, a human right to a clean, healthy and sustainable environment is becoming a staple in international human rights law. Regional human rights courts, tribunals and other bodies will be increasingly called upon to deliver decisions and opinions on this human right. Thus, the draft texts could serve as a starting point for the progressive development of international environmental law. He also noted that the two phases of the main topic — the moment before the transboundary harm (prevention) and the moment following the transboundary harm (loss) — should be dealt with together, with equal legal nature and enforceability. He voiced hope that one day there will be a single convention on both. However, for the time being, a significant step forward might be a whole set of draft articles or draft principles addressing prevention and allocation of loss together, he said.
ALHAJI FANDAY TURAY (Sierra Leone) said the metaphor of the Sixth Committee as a graveyard for the Commission’s work products is reinforced by self-perpetuating arguments and delays in addressing pressing issues. Protecting and safeguarding the environment, its ecosystems and resources is an issue of common concern, and the Sixth Committee’s inertia leaves a gap. In the context of the present articles, this allows for fragmentation, owing to the reliance on regional instruments and bilateral engagements. This, in turn, increases the risk of transboundary harm. Thus, there must be a consistent and coherent international legal framework which sets out relevant standards. In advocating for consistency in the Sixth Committee’s engagement with the draft articles, he encouraged the Commission to provide a clear view on the value of nomenclature in relation to the outcomes of its work. The draft articles and principles provide a good basis for a convention and should be combined, he emphasized.
ZACHARIE SERGE RAOUL NYANID (Cameroon) encouraged a consideration of the environment and sustainable development in the context of the prevention of transboundary harm. The international community must pay attention to the situation and needs of developing countries — and vulnerable countries in particular — and assist them. He also called for greater precision in the draft articles. The multilateral cooperation mechanism in draft article 1 should be more limited in scope and based on specific criteria, such as the activity, nature of harm and geographical area of application, he pointed out. The subjective terms in draft article 2 — “risk”, “harm”, “probability” and “significant” — should be clarified with a legal connotation instead of a conceptual one. Transboundary harms should include a consideration of chemical, biological and radiological harms, he added. The draft principles should further develop a preventive dimension and the draft articles should provide States with a guide to reduce the risk of harm, he continued. On paragraph 2 of draft principle 4, he asked for a clarification on the notion of objective responsibility.
ANNA V. ANTONOVA (Russian Federation) commended the work of the International Law Commission on preparing the draft articles on prevention of transboundary harm from hazardous activities, and draft principles pertaining to the allocation of loss in the case of such harm. Spotlighting the lack of consensus on the drafts, she noted that they should be used by States, inter alia, in concluding agreements. She also underscored the need to continue work to find the most appropriate format for the further practical use of the articles drafted by the Commission.
NURUL AINY YAHAYA (Malaysia) reiterated her country’s wish to provide for the definition of the term “significant” in the draft articles and principles in order to clarify its intended meaning. A proposal from the International Law Commission would help move this matter forward. Noting that the term “transboundary harm” includes diverse categories of environmental damages, including, among others, the atmosphere, water, soil, hazardous wastes and biological resources, as well as damages towards persons, property or the environment, she pointed out the draft articles took a “one-size-fits-all” approach. Therefore, current work should continue to be focused on the analysis of developments in State practice. Regarding the request for an environmental impact assessment by an affected State, she said that the State of origin may refuse to provide such an assessment based on the grounds of not being under an obligation to provide it. Regarding principle 5, she said it was silent on the element of knowledge. It was more appropriate to impose the respective response under this principle when the hazardous activity incident, likely to result in transboundary damage, is within the knowledge of the State concerned.
JOSE JUAN HERNANDEZ CHAVEZ (Chile) said that the jurisprudence of courts, tribunals and other bodies has reaffirmed the importance of the draft articles over time, even if they are not a binding instrument. The draft principles are the logical consequence of the draft articles, as preventing transboundary harm is ineffective, absent stipulations regarding how losses should be allocated. State measures to allocate responsibility to exploiters and guarantee that victims can receive rapid, appropriate compensation are effective measures, and he encouraged States to adopt prevention measures relating to transboundary harm that could contribute to a virtuous cycle in this field. Further, the internal norms of States that adopt measures aligned with the draft articles and principles demonstrate that, while States have the sovereign right to exploit resources according to domestic environmental policy, “that right is not absolute”. Therefore, measures must be adopted to allocate responsibility, provide for indemnification and restore the environment of affected States. While the draft articles and principles are not binding, they still demonstrate the progressive development of international law. To that end, he called for the establishment of a working group to examine their implementation by States, national and international courts, and tribunals, with a view to harmonizing them in a single instrument.
JEEM S. LIPPWE (Federated States of Micronesia), aligning himself with AOSIS, said that his country, composed of hundreds of small islands, was keenly aware of the dangers of transboundary harm. The risk of such harm to the country’s maritime and coastal areas from human activity poses potentially devastating consequences for its islands and the Pacific region as a whole. In that regard, each State has a due-diligence obligation under international law to take all necessary steps to prevent the probable infliction of physical harm by hazardous activities conducted by the State, or under its jurisdiction or control, on another State’s environment, people and property. This prevention rule clearly applies in multiple multilateral forums, processes and instruments relevant to the environment, including those addressing the triple planetary crises of climate change, biodiversity loss and plastic pollution. He also noted that a related rule of customary international law — also reflected in the draft articles — is the requirement to undertake a comprehensive environmental-impact assessment when a proposed activity risks having an adverse transboundary impact. While his country was open to the elaboration of a convention incorporating the draft articles and principles, States must continue to regulate transboundary harm in the absence thereof, he stressed.
MOHAMED FAIZ BOUCHEDOUB (Algeria) said that the development and progressive promotion of international law vis-à-vis the prevention of transboundary harm from hazardous activities, and allocation of loss in the case of such harm, were of particular importance to guarantee amicable ties between States. It was also a concrete example of the principle of good neighbourliness, which is a standard enshrined in the Charter of the United Nations. He noted the positive steps in developing legal and procedural measures that allow for payment of rapid and adequate indemnification in the case of victims of transboundary harm. He called on the Sixth Committee to review the two issues of prevention of transboundary harm and allocation of loss. The Commission’s drafts cannot, in and of themselves, provide for international obligation unless they are part of international conventions that are binding. At the same time, it would be preferable to remain seized of this issue in the context of Sixth Committee discussions, to allow Member States to further develop a detail-oriented crafting of a text that would contain the principles of these draft texts. That would also reflect enshrined customary law in international law that is largely accepted.
ANIL KAYALAR (Türkiye) reiterated his country’s view that the draft articles on prevention of transboundary harm from hazardous activities and the draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities would better serve their purpose as documents of a guiding nature that provide standards of conduct for States. “This will provide the necessary flexibility for State practice and the law in this field to develop,” he added. Therefore, both documents should be preserved in their current non-binding forms. He referred to the Secretary General’s report containing comments and observations of Governments, in which explanations of Türkiye’s main concerns were provided. Draft articles and draft principles have so far not been invoked by Türkiye before any international court, tribunal, or other body, he added.
WIETEKE ELISABETH CHRISTINA THEEUWEN (Netherlands) expressed support for the further elaboration and development of the draft articles and draft principles in an integrated manner. The form of the work on the liability aspects should not differ from that of the prevention aspects, she emphasized. The obligation of States to take the necessary measures to ensure the availability of prompt and adequate compensation for victims of transboundary damage caused by hazardous activities should be incorporated in the draft articles, she stressed.
Law of Transboundary Aquifers
VINÍCIUS FOX DRUMMOND CANCADO TRINDADE (Brazil), also speaking for Argentina, Paraguay and Uruguay, said the Commission’s draft articles on the law of transboundary aquifers provides a set of principles and basic norms to harmonize the use of subterranean water deposits that cross international borders. As a systematic formulation of international law, it provides cooperation mechanisms to avoid disputes, he added. The draft articles recognize the sovereignty and obligations of a State over the part of the aquifer or aquifer system that is located in its territory. As such, these States have the responsibility to develop effective cooperation mechanisms for its management — including the prevention, reduction and control of pollution — as well as its equitable and reasonable use. In cases of uncertainty and in the protection and preservation of ecosystems, a State should be notified of activities that might affect its aquifer, and be provided with technical data and environmental impact studies.
He then spotlighted the agreement between his country, Argentina, Paraguay and Uruguay on the Guarani Aquifer as an example of strengthened cooperation and integration for the conservation and sustainable use of water resources. As the first multilateral agreement on a transborder aquifer, it also represents a significant contribution of the region. Argentina, Paraguay, Uruguay and Brazil are among the first countries to implement General Assembly resolution 63/124, he noted. The Assembly should adopt the draft articles as a declaration on the principles on the law of transborder aquifers, he added.
DAVID BIGGE (United States) said that the work of the International Law Commission on transboundary aquifers constituted an important advance in providing a possible framework for the reasonable use and protection of underground aquifers. He also noted that aquifers are playing an increasingly important role as water sources for human populations. The issues arising from transboundary aquifers are highly context specific and State practices vary widely. In this regard, he underscored that such arrangements provide the best way to address pressures on transboundary groundwaters in aquifers, as opposed to refashioning the draft articles into a global framework treaty or into principles. He thus called on the States concerned to take into account the provisions of these draft articles when negotiating appropriate bilateral or regional arrangements for the proper management of transboundary aquifers.
NATALIA JIMÉNEZ ALEGRÍA (Mexico) underscored that the draft articles represent a balance between vital human needs, the interests of States and the protection and preservation of ecosystems related to transboundary aquifers. She noted that the development of regional and bilateral practices managing transborder aquifers can provide necessary elements for the development of a binding international instrument. She welcomed the introduction of modern notions about the sustainable use of the environment, including protecting and preserving ecosystems, which promotes the sustainable management of shared natural resources. Highlighting the importance of considering these topics by taking into account States’ practices and regional and bilateral agreements, she underscored the need to further reflect on the matter and analyse the work of the Commission based on the practices developed by States.
LIGIA LORENA FLORES SOTO (El Salvador) said that relations between States were becoming more complex in the globalized context of changing meteorological systems, rising sea levels and increasingly extreme, unpredictable weather phenomena. Respecting and caring for the environment must be a priority. Towards this end, the draft articles on this topic constituted an important legal basis that could help promote better use, conservation and management of transboundary aquifers. Further, the draft articles provided guidelines for signing bilateral and regional agreements relating to water basin resources, which is particularly important considering the close relationship between superficial and subterranean waters. A draft convention on this topic that placed binding regulations on Member States would promote greater governance of common spaces. On that point, she stressed the need to ensure a true exchange of relevant scientific and technical knowledge that would build capacity in those entities that may ultimately end up implementing such a regulatory framework, thereby reducing gaps in development.
SERGIO AMARAL ALVES DE CARVALHO (Portugal) emphasized the relevance of this topic, given the potential conflict inherent in shared water, its political and economic importance, and environmental issues related to this natural resource. The draft articles provide a valuable contribution to the proper management of existing transboundary aquifers around the world and, by doing so, to the promotion of peace and cooperation amongst countries. Further, they resemble the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses and the 1982 United Nations Convention on the Law of the Sea, demonstrating their alignment with the development of contemporary international law. They are also compatible with existing European Union law on this topic — which is binding on Portugal — including provisions establishing a framework for community action in water policy and protecting groundwater against pollution and deterioration. He therefore encouraged all States to actively contribute to the development and universal codification of law governing transboundary aquifers, adding that the draft articles should evolve into a convention towards this end.
ZACHARIE SERGE RAOUL NYANID (Cameroon) said that transboundary aquifers were a vital source of wealth for present and future generations. This was recognized by the United Nations; one of the aims of the 2030 Agenda for Sustainable Development was to guarantee access for all to water and sanitation services that were managed sustainably. Water must be put at the heart of all development issues, given the increasing need for fresh water and the need to protect resources, and groundwater resources, in particular. In that regard, it was necessary to appropriately manage an aquifer or an aquifer system. He also questioned the relevance of the wording “significant harm” in article 4; any harm caused by activities does not need to be quantified or given a value judgment. In addition, he insisted on the point that cooperation between the States of the aquifer be a precondition for the sharing of natural resources. In the general context of the increasing scarcity of water, it was important to have legal instruments in the area of water to improve its governance.