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Statement by Mr. MA Xinmin at the Sixth Committee of the 61st Session of the UN General Assembly on Item 78: Report of the International Law Commission on the work of its fifty-eighth session (Shared Natural Resources, Responsibility of International Organizations)
2006/10/27

2006/10/27

Mr. Chairman,

Under the topic "shared natural resources", the ILC, at this year's 58th session, adopted on first reading 19 draft articles on the law of transboundary acquifers and the related commentaries. We express our appreciation to the Commission and the Special Rapporteur, Mr. Chusei Yamada, for the outstanding work they have done on this subject.

I would like to make four general comments on the draft articles.

Firstly, the draft articles represent an enrichment and further development of international law on water.

Secondly, International cooperation on transboundary acquifers should be based on respect for the permanent sovereignty of acquifer States over water resources within their territories. Their reasonable exploration and utilization of such water resources should in no way be restricted.

Thirdly, we believe that the result of the work on this subject can take the form of general guiding principles. We do not think conditions are ripe for the formulation of an international treaty

Fourthly, as for the question of whether study should be carried out on other transboundary resources, in our opinion, it should be approached with prudence after broadly canvassing the views of various countries.

Now I would like to make some specific comments and suggestions with regard to the draft articles. I reserve the right to make further comments in the future.

(1) On article 1 "scope". Article 1 (b) brings into the scope of application "other activities that have or are likely to have an impact upon those acquifers and acquifer systems". We believe that the wording is too broad and hard to define. We suggest that the word "major" be added to qualify "impact", so that the activities that have or are likely to have an impact will be confined to those that have or are likely to have a major impact. Article 14, para. 1 and 2 should be subsequently amended accordingly.

(2) On article 7, "general obligation to cooperate". Para. 2 of this article provides that acquifer States should establish joint mechanisms of cooperation. We are in favor of strengthening cooperation among States concerning transboundary acquifers through such mechanisms. However, on this matter, the will of States should be respected, and it is not appropriate to make it compulsory. As a matter of fact, the general obligation to cooperate is not yet established in international law. In light of this, we suggest that the wording be amended to read: "acquifer States should give positive consideration to establishing joint mechanisms of cooperation".

(3) On article 8, "regular exchange of data and information". As practice in different countries shows, availability and exchange of certain hydrological and related data and information are subject to legal regulation. In light of this, we suggest that necessary qualification be added in article 8, so that the exchange of data and information on transboundary acquifers, as provided for in the article, is carried out to the extent that does not go beyond the bounds of law.

(4) On article 15, "scientific and technical cooperation with developing States". We fully support the promotion of scientific, educational, technical and other cooperation with developing States for the protection and management of transboundary acquifers or acquifer systems. At the same time, we must bear in mind that cooperation in this area is a process of interaction. For the developing States to play a greater role in this cooperation, there has to be a change to the current state of affairs where their capacity to manage acquifers is generally weak. For that purpose, they need both technical and financial assistance from the developed States.

We therefore suggest an additional element in article 15 on the provision of assistance to developing States. For instance, we can consider adding a para. (h) to article 15 as follows: "mobilizing financial resources and establishing appropriate mechanisms in order to help them carry out relevant projects and facilitate their capacity building".

Mr. Chairman,

Under the topic "responsibility of international organizations", the 58th session of the ILC considered the Special Rapporteur's fourth report, focusing on the two questions of "circumstances precluding wrongfulness of conduct by an international organization", and "the responsibility of a State in connection with the wrongful act of an international organization"; and adopted on first reading 13 draft articles. Since the draft articles on "responsibility of States for internationally wrongful acts" do not address the responsibility of a State in connection with the wrongful act of an international organization, we support the efforts of the ILC to fill that gap under this topic. We congratulate the Commission on the result achieved, and express our appreciation to the Special Rapporteur Mr. Gaja for the outstanding work done. I would also like to briefly comment on a few issues.

(1) On article 22, "necessity". We note that under the heading "circumstances precluding wrongfulness", the Commission, on the one hand, retains "necessity" as one of the circumstances, and, on the other hand, sets out conditions to strictly limit its invocation. This notwithstanding, China believes that necessity should not be used as a ground for precluding the wrongfulness of an act of an international organization. China already stated this position during the 59th Session of the GA when speaking on the subject. In this connection, I would like to reiterate our view that in power and function, no automatic parallel can be drawn between an international organization and a State. Besides, international practice does not provide sound support for the invocation of "necessity" by an international organization. Furthermore, almost all issues currently addressed by important international organizations have a bearing on the interest of the international community as a whole. Given what is provided for in the current article 22, can it then be inferred that an internationally wrongful act can be taken or justified by an international organization through invoking, as it chooses, the necessity of safeguarding the interest of the international community as a whole? In practice, precedents are not rare where, in the exercise of power and function, an international organization has been subject to manipulation or abuse by its member States. Consequently, we do not support the inclusion of "necessity" as a circumstance for precluding the wrongfulness of an act of an international organization, and suggest the deletion of draft Article 22.

(2) With reference to aid or assistance, direction and control, and coercion by a State in the commission of an internationally wrongful act by an international organization (draft articles 25 to 27), China is of the view that, in this context, the term "State" can refer both to a member of an international organization and to a non-member state. A State member of an international organization should not be held responsible for an act of the organization for the mere fact that it has participated in the decision making process in accordance with the relevant rules of the organization. However, as has been born out by experience, a State member having major influence over the commission of an internationally wrongful act by an international organization should bear corresponding responsibility for the wrongful act.

(3) As to responsibility of a state member of an international organization for the internationally wrongful act of the organization (article 29), we are of the view that, in fact, incurrence of such responsibility by a State member is possible under all the provisions of draft articles 25 to 28, therefore draft article 29 should in essence be a supplement to those proceeding articles. Par. 2 of this article provides for the subsidiary nature of the responsibility of a State member. This means that an international organization bears the main responsibility for an internationally wrongful act, and a State member bears subsidiary responsibility. We believe that when a State member plays a major and leading role in the commission of an act by an international organization, maybe the main responsibility for the consequences of that act should be placed on the State member.

Thank you, Mr. Chairman.

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