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Statement by Mr. GUAN Jian, Counsellor and Legal Adviser of the Chinese Mission to the United Nations, at the Sixth Committee of the 60th Session of the UN General Assembly, on Item 80: Report of the International Law Commission on the work of its 57th session

2005/10/28

(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