Agenda item 82: Report of the International Law Commission

Chapter V: Shared natural resources

Mr. Chairman,

The Netherlands follows with great interest the work of the International Law Commission on shared natural resources and appreciates the 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,

The Commission has decided to proceed with the second reading of the draft articles on the law of transboundary aquifers in 2008 and treat that subject independently of any future work of the Commission on gaseous substances and liquid substances other than groundwater. From the report, it appears that the following arguments have guided the Commission in the adoption of this decision.

• The looming prospect of a water crisis requires an urgent formulation of an international legal framework. My government would like to point out that several international legal frameworks exist to address such crisis, including the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses. This Convention and other international legal frameworks also cover aquifers that are hydraulically connected to international watercourses and, hence, extend to the use of groundwater.

• Freshwater is a life supporting resource vital for the human being for which there exists no alternative resource. My government agrees with this observation, but it does not necessarily warrant a separate approach for gaseous substances and liquid substances other than groundwater. Such substances may not be vital for the survival of human beings, but aquifers and these substances have in common that they are scarce resources of strategic importance to States. This similarity could well prove to be more significant in the formulation of an international legal framework than the dissimilarity.

• Oil and gas are a non-renewable resource. My government also agrees with this observation, but it does also not warrant a separate approach. The draft articles on the law of transboundary aquifers cover, in their present form, recharging aquifers – a renewable resource -- as well as non-recharging aquifers – a non-renewable resource. Recharging aquifers are hydraulically connected to international watercourses and, hence, covered by the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses. It remains to be seen how the scope of the draft articles on the law of transboundary aquifers can be reconciled with that of the 1997 Convention and in particular whether it is appropriate to regulate recharging aquifers in two different legal instruments.

• Pollution affecting oil and natural gas stored in the reservoir rock itself seems to be minimal and the exploitation and transportation of oil has a risk of causing significant harm to the environment. My government once more agrees with the observation and indeed believes that different rules for aquifers, oil and gas are warranted in this respect. However, different rules do not necessarily require a different legal framework. Special rules for aquifers could also be included in a common legal framework for shared natural resources.

The Netherlands is therefore yet to be convinced that a separate approach is required for groundwater, on the one hand, and gaseous substances and liquid substances other than groundwater, on the other. My government maintains that the majority of the draft articles on the law of transboundary aquifers, notably the underlying obligation of equitable and reasonable utilization and the obligation not to cause significant harm to other States, equally apply to other shared natural resources, such as gaseous substances and liquid substances other than groundwater. The simultaneous consideration rather than a successive consideration of the international law related to shared natural resources would, in our view, enhance the legal quality of the emerging international legal framework, be it a common one or separate ones.

Mr. Chairman,

The Commission has deferred the question of the final form of the draft articles on the law of transboundary aquifers to the second reading in 2008. At previous sessions, my government advanced several reasons to approach this question with caution, in particular if the scope of the draft articles would be limited to groundwater. It is, in our view, in any case not desirable to consider the development of a convention before the completion of the work on gaseous substances and liquid substances other than groundwater. Pending the completion of the work on all shared natural resources, the adoption of a non-legally binding instrument on the law of transboundary aquifers may merit consideration as a first step in the development of an adequate international legal framework for the use of shared natural resources. It therefore pleases me to inform you that, together with this statement, the Netherlands will distribute its comments and observations on the draft articles on the law of transboundary aquifers adopted by the Commission on first reading.

Thank you, Mr. Chairman.