(Shared Natural Resources, Unilateral Acts of States, and Reservations to Treaties)

New York, 28 October 2005

Mr. Chairman,

I would like to make a few brief comments on three topics: shared natural resources, unilateral acts of States, and reservations to treaties.

I. Shared Natural Resources

The 57th session of the International Law Commission discussed the third report submitted by Special Rapporteur Mr. Chusei Yamada under the topic of “shared natural resources.” The report proposed a complete set of draft articles on a convention on transboundary aquifers. We would like to express our appreciation for the excellent work done by the Special Rapporteur.

We basically endorse the Special Rapporteur’s draft article on general principles regarding transboundary ground water. The current draft covers issues concerning equitable and reasonable utilization, international cooperation, and the protection of transboundary aquifers or aquifer systems. We believe that the draft article should make an explicit reference to the sovereign rights of the aquifer States over their aquifers as a natural resource, because this involves the principle of permanent sovereignty of States over their natural resources, as affirmed by GA resolution 1803 of 1962. This is also the basis of the arrangements entered into by relevant countries on the development and conservation of transboundary aquifers.

Since the “transboundary aquifer systems” studied under this topic are no longer limited to transboundary confined ground water, which may communicate with surface water, this draft article may overlap, in its scope of application, with the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses. In order to avoid any instability in the legal status of transboundary aquifers or aquifer systems if they are subject to adjustments under multiple rules, we believe that on the one hand, the scope of application of the draft article can be limited to “confined” aquifer systems or aquifer systems with negligible communication with surface water, which do not fall under the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses. On the other hand, the draft article can be given legal status as a special law that enjoys priority over other international agreements.

With regard to the specific meaning of the principle of “equitable and reasonable utilization” mentioned in the draft article and its rationale, and the question of whether a distinction should be made in the legal rules on “utilization” between “recharging aquifers” and “non-recharging aquifers,” we suggest that the Special Rapporteur continue to study the practices of relevant countries and make further proposals based on ample scientific evidence.

With regard to the “obligation not to cause harm” mentioned in the draft article, we agree with the Special Rapporteur’s formulation of avoiding “significant harm.” What kind of harm constitutes “significant” harm is a question that needs to be determined in the light of specific conditions. This concept is already incorporated in the topic of “international liability for injurious consequences arising out acts not prohibited by international law.” We agree with the Special Rapporteur’s approach in not addressing the question of compensation in the draft article.

On the final form of the draft article, we support the Special Rapporteur’s view that the fact that the current draft article is in the form of a framework convention does not prejudge its final form. This can be settled after progress has been achieved on substantive questions. The question of form will mainly involve the question of the legally binding nature of the draft article. Therefore, considering the complexity of the question of transboundary aquifers and the lack of sufficient state practices, we believe there is the need to proceed with caution in deciding on the final form of the draft article, so as to avoid imposing unreasonable constraints on the sovereign rights of States in utilizing aquifers and in solving questions relating to transboundary aquifers through consultations.

II. Unilateral Acts of States

Deliberations on this topic in the International Law Commission have been going on for nearly a decade. Though some members remain doubtful to this day as to the feasibility of codifying unilateral acts by States, we believe that at least quite a number of unilateral acts are based on States’ intention of producing legal effects. The existence of such acts has already been proven by international practices and judicial decisions, and is having a major impact on international relations. Therefore, to intensify studies on unilateral acts by States and to determine the conditions under which unilateral acts by States can produce legal effects will help maintain the stability and predictability of international relations. This is also the rationale for the study of this topic.

In our view, even if the committee cannot arrive at a draft article, it can still take stock of its studies in the last decade and identify some basic principles on unilateral acts by States. This will serve as a reference for state actors as well.

III. Reservations to Treaties

The 57th session of the International Law Commission discussed the tenth report of Special Rapporteur Mr. Alain Pellet. We appreciate the excellent work done by Mr. Pellet.

On the basis of the stipulations of Article 19 of the Vienna Convention on the formulation of reservations, this report studied the question of the validity of reservations, i.e., the conditions under which state parties can formulate reservations, and the conditions that prohibit or limit the formulation of reservations by state parties, and focused on the various types of reservations contrary to the objects and purposes of the treaties.

As we see it, the conditions for the permission or the prohibition of formulation of reservations by States constitute the core of the question of reservations to treaties and merit more in-depth study. We endorse the Special Rapporteur’s view that the Vienna Convention, generally speaking, is open and flexible on the question of reservations. To treat the prohibition of reservations as an exception to the permission of reservations can encourage more countries to ratify international treaties, expand the scope of their application, maintain the integrity and effectiveness of the treaties, and avoid having excessive reservations weaken the effect of treaties.

With regard to ways to judge whether reservations to treaties are contrary to the objects and purposes of the treaties, there is a scarcity of uniform and objective standards in practices. The Special Rapporteur attempted to define the objects and purposes of treaties as “essential provisions of the treaty” and the “raison d’être” of the treaty. This may serve as a way out, but it still can hardly eliminate subjectivity in making judgments.

As for the relationship between reservations on the one hand and customary norms, peremptory norms, and non-derogable rights on the other, we believe that, questions of customary norms, peremptory norms and non-derogable rights being extremely complex questions, their relationship with reservations to treaties still needs further exploration. With regard to reservations to treaties on human rights and treaties on the settlement of disputes or articles on the implementation of monitoring mechanisms in treaties, although there have been many instances of reservations by state parties to these two categories of treaties, to single them out from all categories of treaties is not a scientific approach, because there are no special standards governing these categories in determining which reservations are incompatible with the objects and purposes of the treaties.

This concludes my statement. Thank you, Mr. Chairman.