Statement by Dr. Johan G. Lammers, Legal Adviser, Ministry of Foreign Affairs of the Kingdom of the Netherlands

Mr. Chairman,

The Netherlands follows with great interest the work of the International Law Commission on shared natural resources and appreciates the preparatory work of the Special Rapporteur, Mr. Chusei Yamada, on this topic. My country is a country where many natural resources can be found that it shares with other States or areas beyond the limits of national jurisdiction. These include groundwater, mineral deposits, such as oil and gas, and migratory species on land, in the air, and in the sea. The international regulation of the uses of and impacts on shared natural resources is therefore evidently of the highest significance to my country.

Mr. Chairman,

At the previous session of this Committee, my government has expressed its concern with respect to the general approach on this topic. In this regard, my government would like to recall and elaborate on the points it has made before.

· The limited scope of the proposed rules. Only acquifers are covered by the draft articles that are currently under consideration. Further work on other shared natural resources is anticipated following the completion of the work on acquifers. It would therefore seem that one or more additional sets of rules is envisaged for those other shared natural resources. The present approach would seem to forego the opportunity to develop an overarching set of rules for all shared natural resources. In particular, it has not been clarified why the proposed set of rules could not also apply to gaseous substances and liquid substances other than groundwater. The Special Rapporteur has noted that there are many similarities with oil and gas, and that it would be necessary to give due attention to the relationship before completing the second reading. Mr. Chairman, in my government’s view, such due attention is necessary before completing the first reading so as to allow governments to reflect on that relationship.

 · The final form of the proposed rules. Although the presentation of the proposals in the form of draft articles of a convention is allegedly without prejudice to their final form, it leaves little doubt as to the preferred approach. Even leaving aside the premature proposal for final clauses and the argument for the refusal to formulate provisions on the position of non-acquifer States, the proposal that the draft articles prevail over the 1997 Convention on the Law of Non-navigational Uses of International Watercourses can only be realized through a legally binding instrument. However, in view of the potentially limited number of interested States, it may not be productive to work towards a ‘draft convention on the law of transboundary acquifers’. Although participation in such a convention may be open to all States, it is likely to be considered only by States on whose territory any part of a transboundary acquifer or acquifer system is situated. There may not be that many such States and, hence, such a convention is not likely to attract a wide participation. The framework character of the proposed rules is another reason to approach the final form of the proposed rules with caution. States may have little reason to express their consent to be bound to a treaty if the subject-matter is or is likely to be regulated by bilateral and regional arrangements – as may be illustrated by the relentless but unsuccessful efforts to procure the entry into force of the 1997 Convention.

 · The framework character of the proposed rules. The status of the 1997 Convention may also be a reason to rethink the framework approach. Whereas the existence of bilateral and regional agreements on transboundary watercourses and international lakes inspired such an approach, the relative scarce treaty practice in the field of shared natural resources does not necessitate the same approach. And States will always have the freedom to deviate from or to complement the provisions of a treaty inter se to the extent that such treaty does not contain ius cogens.

 Mr. Chairman, In addition to the abovementioned comments on the general approach to the topic, the following points address some issues in relation to draft articles as presented.

 · Obligation not to cause harm (draft article 7). The first paragraph addresses aspects concerning prevention which, in case of non-compliance, could entail State responsibility. This has correctly been presented as a duty of due diligence. The third paragraph deals with the eventuality where significant harm is caused in spite of compliance with the duty of due diligence and, hence, with paragraph 1. The formulation of this paragraph follows the equivalent provision of the 1997 Convention. In particular, it provides at the end that States shall “discuss the question of compensation”. This formulation does not take into account the progress that the Commission has made on this question in recent years. Having regard to the draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, it would seem appropriate to replace this phrase by an obligation pursuant to which States shall “ensure that prompt and adequate compensation is provided”. Although the draft principles only cover hazardous activities and not all activities relating to transboundary acquifers may qualify as such, there is no apparent reason why the underlying arguments for such formulation would not apply mutatis mutandis.

· Prevention, reduction and control of pollution (draft article 14). While the arguments of the Special Rapporteur that this provision and related provisions should not be construed as environmental protection provisions are not convincing and not suitable for inclusion in the commentary, it is the formulation of and arguments underlying the second sentence of this draft article that deserves our attention. According to the Special Rapporteur, the precautionary principle has not yet developed as a rule of general international law and has therefore used the term ‘precautionary approach’. Mr. Chairman, my government disagrees with the Special Rapporteur. My government is of the view that the precautionary principle is part and parcel of customary international law and, irrespective of this consideration, prefers the use of the term ‘precautionary principle’ in the draft articles. Furthermore, my governments would like to query the formulation of the second sentence that would seem to be a misrepresentation of the concepts underlying the precautionary principle. It reads as follows: “In the light of uncertainty about the nature and extent of some transboundary acquifers or acquifer systems, acquifer States are encouraged to take a precautionary approach’. Mr. Chairman, precaution is not dictated by uncertainty about the state of the environment alone, but by uncertainty about the impact of a human activity on the environment. This is not reflected in the draft article that for that reason alone deserves to be reconsidered.

 Thank you, Mr. Chairman.