Delegates Finish Consideration of International Trade Commission Report
Beginning its consideration on the prevention of transboundary harm from hazardous activities and the allocation of loss in the case of such harm, as well as the law of transboundary aquifers, the Sixth Committee (Legal) today debated the merits of formalizing the draft articles on the two topics into a binding international convention.
Taking up the Secretary General’s reports on the prevention of such harm and allocation of related loss (documents A/74/131 and Add.1 and A/74/132), many speakers expressed gratitude for the International Law Commission’s work on the draft articles and principles even as they dissented regarding their final form.
The representative of China, while supporting the Commission’s continuing observation of the development of State practice in this field, urged that the draft articles and principles not be turned into a convention. Certain elements of these documents constitute the development of existing international law in an area where national practices vary. Setting a simple cookie cutter standard is inadvisable, he said.
Echoing that, the United Kingdom’s delegate questioned the benefit of adopting a convention that treats all categories of transboundary harm in the same way. Rather, these subjects are already covered by several binding sector specific and regional instruments, he pointed out, adding that such initiatives are preferable as they are tailored to address different activities and potential harms.
However, the representative of Sudan, noting her disagreement with that stance, embraced the idea of a convention. The progressive development of international law on environmental issues is necessary since these problems cannot be resolved by States acting alone, she said. Transboundary practices affect several countries. Therefore, the principle of allocation of loss represents a kind of equity.
El Salvador’s representative also highlighted the interrelated global context. While the question of international liability in this area is one of broad scope, the obligation to prevent harm is nevertheless a commitment defined under international law. He encouraged the international community to work towards creating a convention to create greater obligations for States to protect the environment and enable sustainable development.
The Committee then began consideration of the law of transboundary aquifers, with Pablo Arrocha (Mexico), Vice Chair, calling attention to the last relevant report on the matter (document A/68/172). Here, too, delegates similarly noted their value of the Commission’s work but split on further action.
The representative of Chile said he supported initiatives to facilitate scientific knowledge and information exchange concerning transboundary aquifers and called on States to respect the independence and neutrality of international technical bodies giving advice on related matters. The use of shared groundwater resources is subject to the principle of equitable and reasonable use, applied on a case by case basis, without preconceived ideas and with due regard for basic human needs, he added.
Rejecting formal codification of the draft principles, Israel’s delegate remarked that negotiations regarding transboundary aquifers are highly case specific and must consider a variety of geophysical and hydrological factors. The draft articles can serve as useful guidance for negotiating bilateral or regional agreements in this area, he noted, but there is no need to move beyond the draft stage at present.
Portugal’s delegate, conversely, pointed to the draft articles’ well balanced solutions that are in line with the evolution of contemporary international law and compatible with existing European Union law on the matter. The articles should evolve into a framework convention, as the transboundary sharing of water affects relations between countries, she said, adding that there is potential conflict inherent to shared water.
The representative of Mauritius, interpreting the political power of water differently, called on riparian States to harness the synergies between foreign, development, economic and environmental policy to effect hydro diplomacy. Juxtaposing increasing demand from population growth and food production and decreasing supply due to pollution, overpumping and climate change, he emphasized that water can be a catalyst towards dialogue in otherwise confrontational relationships. The draft articles constitute a basis for countries to develop agreements with their neighbours, and these regional agreements are preferable, he said.
At the outset of its meeting, the Committee also concluded its debate on the report of the United Nations Commission on International Trade Law (UNCITRAL) on the work of its fifty second session. (For background, see Press Release GA/L/3602.)
Also speaking today were representatives of Brunei Darussalam, Belgium, Iran, Peru, Colombia, Belarus, Viet Nam, Indonesia, Russian Federation, Sweden (also speaking for Denmark, Finland, Iceland and Norway), Canada (also speaking for Australia and New Zealand), United States, Turkey, Malaysia, Bosnia and Herzegovina, Egypt, Denmark (also speaking for Finland, Iceland, Norway and Sweden) and Japan.
Speaking in exercise of the right of reply were the representatives of Croatia and Bosnia and Herzegovina.
The Sixth Committee will meet at 10 a.m. on Friday, 25 October, to begin its debate on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law.
Statements on United Nations Commission on International Trade Law
Mr. GANI (Brunei Darussalam), noting that his country aimed to be part of the wider global market, praised the work of the United Nations Commission on International Trade Law (UNCITRAL), particularly the United Nations Convention on International Settlement Agreements Resulting from Mediation [the Singapore Convention on Mediation] that Brunei Darussalam is currently in the process of ratifying. On this, he expressed appreciation for the assistance that the Commission’s related model law provides in that process. The Convention provides a harmonized framework for the enforcement of these agreements, facilitates international trade and makes the mediation process flexible and cost efficient. He expressed hope that his country will work closely with UNCITRAL to achieve modernization and harmonization in the field of international trade law.
NICOLAS FIERENS GEVAERT (Belgium), aligning himself with the European Union, expressed appreciation for the Commission’s efforts to harmonize and develop international trade law. Calling the Commission the main body that creates legislation on this within the United Nations, he voiced support for the considerations of working groups. As Working Group II is currently drafting rules on expedited arbitration, it must take into account the independence of arbitrators. Also calling for root and branch reforms on investor State dispute settlement, he said those reforms should be as inclusive as possible, taking into consideration the points of view of States and civil society. Further, adding his support for the Commission’s efforts to harmonize norms in identity management and trust services, he noted that its discussions have become more concrete.
Mr. SHARIFI (Iran) said that expedited arbitration is less expensive and faster than standard arbitration. It is important to increase efficiency of this procedure by ensuring its quality, due process and fairness. Also expressing interest in Working Group III’s mandate concerning reform of investor State dispute settlement, he said that it must address the concerns of States and investors with respect to the new generation of investment regime by enhancing consistency and access to justice. Turning to judicial sale of ships, he added that the new draft should address the concerns expressed by Member States on the text prepared by the Comite Maritime International. That includes the necessity of acquiring judicial approval for foreign judicial decisions so that administrative enforcement can take place internally.
ENRI PRIETO (Peru) thanked the Commission for its efforts to modernize and harmonize international trade law, as this facilitates domestic and international trade and promotes economic, political and social development. Underlining Peru’s participation in the Commission’s working groups, he said that the efforts of Working Group I on micro , small and medium sized enterprises reduce legal obstacles to the formation of these entities. He called for the continuation of intersessional events in various regions, as these keep regional stakeholders informed of important multilateral processes, particularly if they cannot attend meetings in New York or Vienna.
JUAN CUELLAR TORRES (Colombia), welcoming the initiative of the Commission to discuss investor State dispute settlement reform, said all countries must be allowed to express their opinions. At the same time, it is critical to avoid unnecessary delays. One of the most important issues is a mechanism to review settlement of awards, he said, adding that Working Group III discussions have acknowledged the inconsistencies between awards, and therefore the unpredictability of the arbitration process. The balance between rights and obligations of States needs to be restored and trivial claims need to avoided. Several delegations have agreed with his delegation’s significant proposal on the need to adopt a methodology to adopt a broad multilateral convention which would encompass the thousands of agreements that exist today on this topic, he said.
RUSLAN VARANKOV (Belarus) pointed to the increasing use of mediation in international trade practice as an alternative to judicial proceedings; that mechanism settles disputes, maintains trade relations and costs less than judicial proceedings or arbitration. Drawing attention to Working Group III, he stated that investor State dispute settlement reform is a key issue and urged that further consideration be given to such reform, including the need for investors to exhaust all domestic remedies before turning to arbitration; investors’ obligations to uphold human rights and the environment; the admissibility of counter cases; and ways of preventing disputes from arising. He also welcomed the adoption of the Model Legislative Provisions on Public Private Partnerships. UNCITRAL plays an important role in expanding the rule of law on the national and international levels. Other multilateral fora should use its successful apolitical development of international legal standards as an example, he added.
NGUYEN QUYEN THI HONG (Viet Nam) said that exploratory and preparatory work conducted by the Secretariat on future topics should not prejudice its assistance to Member States in considering topics currently on the programme of work. She highlighted the importance of technical assistance in law reform, moot competition and internship, as well as in capacity building and promotion of the rule of law through dissemination of information about the Commission’s work. She also affirmed the importance of the Commission’s regional presence. Regarding expanding the Commission’s membership, she supported an inclusive discussion of the matter within a defined timeline to ensure that enlargement does not come at the cost of efficiency and effectiveness and that equitable geographical distribution is achieved.
Mr. TAUFAN (Indonesia) said that in respect to Working Group I, cost effective and efficient business registration was critical to assist business formation, which in turn contributed to micro , small and medium sized enterprises. Cost effective and efficient business registration is critical to help business formation. Regarding Working Group III, he noted that much work needs to be done to produce a meaningful investor State dispute settlement reform that moves towards a fairer investment dispute settlement mechanism. The current regime should be improved to reduce States’ exposure to the investor State dispute settlement process. This could be done by putting in place more safeguards and exhausting local remedies before resorting to the settlement mechanism. Also welcoming the progress made in Working Group IV, he encouraged the continuation of its work based on the revised set of provisions to be prepared by the Secretariat. Turning to Working Group V, he welcomed the adoption of the Model Law on the recognition and enforcement of insolvency related judgments and its Guide to enactment.
ELENA A. MELIKBEKYAN (Russian Federation), commending UNCITRAL’S contribution in developing economic cooperation in international private law, welcomed the adoption of the Model Legislative Provisions on Public Private Partnerships. She also praised the Commission’s work on developing standards to decrease the obstacles faced by micro , small and medium sized enterprises. The Russian Federation is an active participant in Working Group II on expedited arbitration, she said, also calling for a careful and balanced approach to investor State dispute settlement. It is especially crucial to take into account regional specifics, she said, adding that it is also expedient to further consider the legal aspects of identity management and trust services. Given the intensive digital transformation underway, it is necessary to look at good practices in that area, she said.
Statements on Prevention of Transboundary Harm from Hazardous Activities
CECILIA ANDERBERG (Sweden), also speaking for Denmark, Finland, Iceland and Norway, thanked the International Law Commission for its continuing contribution to the codification and progressive development of international law. She welcomed the Commission’s articles concerning the prevention of transboundary harm from hazardous activities and its principles on the allocation of loss in the case of such harm.
Noting the General Assembly’s invitation to Governments to submit further comments on any future action � in particular on the form of these articles and principles � she noted that her country and those for whom she is speaking are flexible as to the final form for such instruments. There is merit in combining them into a single document, she added, pointing out that these articles and principles, as developed by the Commission and adopted by the General Assembly, are parts of the international law framework either as customary law or as non binding guidance.
CATHERINE BOUCHER (Canada), also speaking for Australia and New Zealand, said that transboundary harm continues to be an area of concern for States as can be seen by the General Assembly’s passing of resolution 71/143 of December 2016 on that topic. Noting that this resolution commended the articles and principles prepared by the International Law Commission, she observed that they are referred to by international, regional and domestic courts. These references show how relevant they are, she said, adding that the risk associated with hazardous activities, whether within or beyond national jurisdictions, remains a concern for all States.
As the world becomes more interreliant, transboundary harm issues are becoming more frequent, she continued. As such, it is necessary that there be a consistent, coherent and widely followed international framework that sets out the standard of conduct and practice which the international community expects from States in preventing transboundary harm and the allocation of loss in the event of an occurrence. However, there is little to be gained from attempting a transformation of these articles and principles into the form of a convention, she said.
YANG XI (China) said that the draft articles and draft principles on prevention of transboundary harm and allocation of loss contain elements that constitute the development of existing international law, an area where national practices vary. In dealing with transboundary environmental damage, consideration should also be given to the different features of environmental damage, specific to, inter alia, the atmosphere, water, soil and biological resources. Setting a simple cookie cutter standard is inadvisable, he said. The International Law Commission should continue collecting and observing the development of State practices in this field, he said, adding that he did not advise turning the drafts into a convention at this moment.
PHILIP DIXON (United Kingdom) said that he did not see the need for a convention on the prevention of transboundary harm or the allocation of loss in the case of such harm, as these subjects are already covered by a number of binding sector specific and regional instruments. He also questioned the benefit of adopting a convention that treats all categories of transboundary harm in the same way; there is an advantage in subject specific initiatives that are tailored to address different activities and potential harms. Therefore, a convention on these topics is neither necessary nor desirable and the draft articles and principles should remain as non binding guidance, he said.
Ms. ELGINDI (Sudan) said that since transboundary practices may affect several countries, the principle of allocation of loss is a kind of equity. Therefore, it is necessary to develop a convention on the matter. Such an instrument would constitute a progressive development of contemporary international law on environmental issues since environmental problems cannot be resolved by individual action by States alone. They call for cooperation between polluter States and States experiencing pollution. Reiterating the sovereign rights of States to exploit their resources in accordance with their environmental policies, she added that States of origin should take appropriate measures to prevent transboundary harm. However, noting the variable interpretation of the term appropriate, she stressed that cooperation should be obligatory, not optional or based on good faith.
DAVID BIGGE (United States) said the draft articles should be treated as non binding standards to guide States’ conduct and practice. Retaining the current, recommendatory form of these draft articles and principles increases the likelihood that they will gain widespread consideration and fulfil their intended purpose of providing States a valuable resource. These draft articles and principles are innovative and aspirational in character rather than descriptive of current law or State practice; they are designed to encourage national and international action in specific contexts rather than form the basis of a global treaty. He therefore noted his support for retaining these products in their current form.
MINE OZGUL BILMAN (Turkey) said that the draft articles on prevention of transboundary harm and the draft principles on the allocation of loss would better serve their purpose as documents of a guiding nature that provide standards of conduct for States. The documents should be preserved in their current non binding format, she said, adding that the texts have not been invoked by her country in front of any international court or tribunal.
HA�CTOR ENRIQUE JAIME CALDERA�N (El Salvador) said that, in the globalized context of international society, it is necessary to apply customary international law to the environmental domain. Acknowledging the broad scope of the question of international liability in this matter, he said that, nevertheless, the obligation to prevent harm is a commitment defined under international law. States can be liable for harm caused to persons outside their border as a result of activities within their borders. Encouraging the international community to work towards creating a convention based on the draft articles, he said that these matters must be legally incorporated to create greater obligations for States to protect the environment and thus enable sustainable development. It is also necessary to define the term, significant harm which is mentioned in several articles, he noted.
ALEXANDER S. PROSKURYAKOV (Russian Federation) observed that it is important that the international community has the Commission’s draft articles on the prevention of transboundary harm and the allocation of loss in the case of such harm. Despite a lack of consensus regarding the articles’ fate, he pointed out that they could be used by States as a basis on which to conclude agreements.
SERGIO AMARAL ALVES DE CARVALHO (Portugal), welcoming the General Assembly’s adoption of the draft articles and the draft principles, said that we are still far away from the 2001 and 2006 recommendations by the International Law Commission. The topic should be analysed under the light of its own history and for the purposes of codification and progressive development of international law � which should be harmonious and coherent. A human right to environment is becoming a staple in international human rights law. Regional human rights courts, tribunals and other relevant bodies will increasingly be called upon to deliver decisions and opinions on the recognition and scope of that right, as reflected in the advisory opinion of the Inter American Court on Human Rights. The draft articles and draft principles can serve as a point of departure for the progressive development and progressive interpretation of international environmental law, he said, expressing hope that there will one day be a single convention on the matter.
MUHAMMAD FALAH AZIZAN (Malaysia) said that in order to lessen the risks of significant social, economic and environmental impacts of transboundary harm, a consistent, coherent and widely supported international framework is needed, setting out the relevant standards of conduct and practice. The draft articles and principles will positively contribute to the progressive development of international law and lead to further development of comprehensive standards for all States to follow. The consolidation of the drafts into a legally binding international or regional convention will likely take many years, but States have a general duty under international law to observe due diligence to prevent or minimize transboundary harm, he said.
MARINKO AVRAMOVIC (Bosnia and Herzegovina) expressed concern about Croatia’s plan to build and establish storage for the disposal of low and intermediate radioactive waste from the Krsko nuclear power plant close to his country’s border. Krsko, located in Slovenia and jointly owned with that country, is scheduled to be closed in 2043. Croatia’s facility to dispose of half the nuclear waste would be located only three kilometres from Novi Grad in Bosnia and Herzegovina, causing problems for that town’s 30,000 inhabitants. Noting his strong opposition to the facility’s construction at this location, he said he hoped that Croatia will find another solution that will not jeopardize good neighbourly relations. Moreover, the building of this facility would not be in accordance with the provisions of article 3 of the Annex to General Assembly resolution 62/68 (2007), he observed, calling on Croatia to find a mutually-agreed solution and avoid a possible legal dispute on the matter.
MOHSEN SHARIFI (Iran) said the two by-products of the Commission’s work on the 2001 draft articles and the 2006 draft principles are the result of extensive research on relevant regional, international and domestic regimes. Those texts contain elements considered to be common to domestic civil liability regimes in many countries. The progressive nature of certain elements of that work, however, requires some time to effect adaptation by States. Noting that the definitions of some international principles including prevention, cooperation, prior authorization, notification and information remain undisputed, he said their interpretation has at times been the subject of dispute. In that regard, he emphasized the importance of principle 6 of the 2006 draft, International and domestic remedies on adoption of relevant national and international legal frameworks to provide easy access to remedies for victims, and principle 7, Development of specific international regimes.
AHMED ABDELAZIZ ELGHARIB (Egypt), welcoming the Secretary General’s report on the prevention of transboundary harm, added that the draft articles and principles are positive contributions to general international law on an important issue that requires appropriate international treatment. While recognizing the importance of continuing to compile practice and comments on the draft articles and principles, he remarked that he did not believe they will lead to a binding legal convention.
Right of Reply
The representative of Croatia, speaking in exercise of the right of reply, said that his country is deeply aware of the vulnerability of the environment and the need for its protection. Croatia is a party to numerous international agreements on regulating environmental issues. Unfortunately, the important topic under consideration today has been politicized by Bosnia and Herzegovina. These agenda items emanate from the International Law Commission’s work, he said, adding that this is the first time that country has commented on this topic. Croatia is fully entitled to build a storage facility for radioactive waste on its own territory. Though no final decision has been made, certain activities are being undertaken and the International Atomic Energy Agency (IAEA) experts have positively assessed the methodological approach of that procedure, he said.
The representative of Bosnia and Herzegovina said that his country’s position is supported by facts on the ground.
Statements on Law of Transboundary Aquifers
RASMUS JENSEN (Denmark), also speaking for Finland, Iceland, Norway and Sweden, said that as climate change now impacts every country in the world, the issue of transboundary aquifers has become even more important for achieving Sustainable Development Goal 6 on the availability and sustainable management of water and sanitation. In general, the draft articles before the Committee serve as helpful tools to enable the sustainable management of transboundary aquifers.
However, he noted his concern about some elements, especially regarding the vulnerability of aquifers and the fact that the livelihoods of many people depend on their proper management � which makes it particularly important for aquifer States not to cause harm to transboundary aquifers. The present articles 6 and 12 refer to a threshold of significant harm, but that threshold is too high to safeguard transboundary aquifers for the people that depend on them. Among other things, he welcomed bilateral and regional arrangements on transboundary aquifers, such as the Guarani Aquifer Agreement between Argentina, Brazil, Paraguay and Uruguay, which seek to benefit all communities and the environment.
SHAHAR BERGER (Israel) said that freshwater scarcity threatens the region and the globe because of desertification and climate change. As a leader in ground-breaking desalination and water saving agricultural technologies, Israel aims to make a positive contribution to implementing Goal 6 by sharing best practices and technologies in water and sanitation. Expressing appreciation for the Commission’s work on the draft articles on the law of transboundary aquifers, he noted that this body of work can serve as useful guidelines for negotiating bilateral or regional agreements in this discipline. However, codification of these draft articles into a formal international convention would not be appropriate. Negotiations regarding transboundary aquifers are highly case specific and must consider a variety of factors including geophysical conditions and hydrological characteristics, among others. As such, there is an advantage to having a flexible and pragmatic approach that takes the draft article principles into account but is not overly dogmatic or rigid. Thus, there is no need at present to move beyond the draft articles, he noted.
DAVID BIGGE (United States) said that the International Law Commission’s work on transboundary aquifers constituted an important advance in providing a possible framework for the reasonable use and protection of underground aquifers. Noting that such aquifers are playing an increasingly important role as water sources for human populations, he added that there is still much to learn about them. Context specific arrangements provide the best way to address pressures on transboundary groundwater in aquifers, as opposed to refashioning the draft articles into a global framework treaty or into principles. Outlining the numerous factors that might be taken into account in any specific negotiation, he pointed to the hydrological characteristics of the aquifer at issue, present uses and expectations regarding future uses and climate conditions. These factors will vary with each particular set of circumstances. Therefore, maintaining the articles in draft form will be the most useful way to ensure that are a useful resource, he said.
RISHY BUKOREE (Mauritius) observed that most fresh water is found in aquifers, many of which are transboundary as geological formations know no political borders. However, because institutions often lack the capacity to overcome conflicting approaches in the use and allocation of water from within one basin or aquifer system, freshwater resource management becomes fragmented. The Commission’s draft articles provide guidance to countries on the proper management of transboundary aquifers and may constitute a basis for countries to develop their own agreements with their neighbours. These regional agreements are preferable to an international convention. Juxtaposing increasing demand from population growth and food production and decreasing supply due to pollution, overpumping and climate change, he pointed out that water can be a catalyst towards dialogue in otherwise confrontational relationships. Riparian States should harness the synergies between foreign, development, economic and environmental policies to contribute to the success of hydro diplomacy and implement the 2030 Agenda, he added.
MINE OZGUL BILMAN (Turkey) said that each transboundary aquifer has its own specific characteristics and peculiarities. Therefore, it would not be appropriate to apply a single framework to all of them. Work on the law of transboundary aquifers should focus on the general principles; the draft articles should continue to serve as voluntary guidance for State practice in their current non binding form.
RIVERA SANCHEZ (El Salvador) said the globalization of natural phenomena means that environmental protection must now guarantee intergenerational equity. The draft articles can serve as guidance for regional and bilateral agreements for the sound management of transboundary aquifers. They support State practice in her country, she said, noting their application to transboundary aquifers shared with neighboring countries such as Guatemala and Honduras. We are a country that, as the result of geology, is the recipient of groundwater, she said. The draft articles will be an even more significant contribution if they are adopted as a convention, with the goal of ensuring that its obligations are binding on Member States. She also called for clarifications on certain terms, such as waterway or water stream in article 2, and the term significant harm in article 6.
HOTAKA MACHIDA (Japan) said that a large portion of fresh water is in underground aquifers across national boundaries. As these aquifers get overexploited, seriously depleted and damaged by pollution, it is important to develop legal instruments to regulate their use in support of sustainable development. The draft articles developed by the International Law Commission provide a valuable platform for countries to establish bilateral or regional legal frameworks to manage their aquifer systems. They adequately reflect a wide range of established State practices, are well supported by scientific evidence and lay out the essential elements of a possible legal framework. Progress in codification at the bilateral and regional levels has been slow but steady. For this reason, he proposed that the next discussion on this matter be held in five years � a timespan necessary to observe further developments in State practice and make proper decisions on the final form of the draft articles.
Ms. PEREIRA (Portugal), recalling that the Commission recommended that States consider the elaboration of a convention based on the draft articles at a later stage, said that transboundary sharing of water affects the relations between countries. There is potential conflict inherent to shared water, she said, noting its political and economic importance and environmental issues related to it. Overall, the solutions presented in the draft articles are well balanced and in line with the evolution of contemporary international law. Furthermore, the articles are also compatible with existing European Union law on this matter. Encouraging all States to actively contribute to the development and universal codification of the law of transboundary aquifers, she said that the articles should evolve into a framework convention.
MILENKO ESTEBAN SKOKNIC TAPIA (Chile) confirmed his country’s commitment to the draft articles’ guiding principles, particularly those of equitable and reasonable use, the obligation to not cause significant harm and the obligation to cooperate. Spotlighting the principle of sovereignty of aquifer States in draft article 3 and the definition of aquifer in draft article 2, he underscored that interpretation and application should be done according to customary law applicable to shared water resources. In addition, the use of shared groundwater resources is subject to the principle of equitable and reasonable use; this principle must be applied in light of all relevant factors, on a case by case basis, without preconceived ideas and with due regard for basic human needs. He also supported initiatives to facilitate scientific knowledge and information exchange concerning transboundary aquifers and called on States to respect the independence and neutrality of international technical bodies giving advice on matters related to the use of such aquifers.
AHMED ABDELAZIZ ELGHARIB (Egypt) said the draft articles drafted by the International Law Commission are a valuable contribution. Expressing his delegation’s positive response to the text, he said that it was necessary not to exclude any way of dealing with these articles.
Source: United Nations