Summaries of the Work of the International Law Commission
Shared natural resources (Law of transboundary aquifers)
See also: Oil and Gas | Analytical Guide | Texts and Instruments
At its fifty-second session, in 2000, the Commission, on the basis of the recommendation of a Working Group on the long-term programme of work, concluded that the topic “Shared natural resources of States” was appropriate for inclusion in its long-term programme of work.1
The General Assembly, in resolution 55/152 of 12 December 2000, took note of the Commission’s report concerning its long-term programme of work. In resolution 56/82 of 12 December 2001, the Assembly requested the Commission to further consider the topic having due regard to comments made by Governments.
At its fifty-fourth session, in 2002, the International Law Commission decided to include the topic “Shared natural resources” in its programme of work, to appoint Chusei Yamada as Special Rapporteur for the topic, and to establish a Working Group to assist the Special Rapporteur.2
The General Assembly, in resolution 57/21 of 19 November 2002, took note of the Commission’s decision to include the topic in its programme of work.
At its fifty-fifth session, in 2003, the Commission had before it the first preliminary report3 of the Special Rapporteur which provided the background on the topic and proposed to limit its scope to the study of confined transboundary groundwaters, oil and gas, with work proceeding initially on the study of confined transboundary groundwaters. The Special Rapporteur also submitted an addendum to the report which was technical in nature and sought to provide a better understanding of what constituted confined transboundary groundwaters. The Special Rapporteur noted that the problem of shared natural resources had first been dealt with by the Commission during its codification of the law of the non-navigational uses of international watercourses. At the time, the Commission had decided to exclude confined groundwaters unrelated to surface waters from the topic, but nonetheless considered that a separate study was warranted due to the importance of confined groundwaters in many parts of the world. The Special Rapporteur deemed it indispensable to know exactly what such groundwaters were in order to ascertain the extent to which the principles embodied in the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses could be applicable. The Special Rapporteur noted that the international efforts to manage groundwaters were taking place in different forums, that the law relating to groundwaters was more akin to that governing the exploitation of oil and gas, and that the Commission’s work on the topic of international liability, particularly regarding the prevention aspect, would be relevant.4
The Commission considered the report without taking any decision with respect to the scope of the topic or the future course of work. The Commission also had an informal briefing by experts on groundwaters from the Food and Agriculture Organization and the International Association of Hydrogeologists.5
The General Assembly in resolution 58/77 of 9 December 2003 invited Governments to provide information to the International Law Commission regarding national legislation, bilateral and other agreements and arrangements with regard to the use and management of transboundary groundwaters, in particular those governing quality and quantity of such waters, relevant to the topic.
At its fifty-sixth session, in 2004, the Commission had before it the second report6 of the Special Rapporteur which proceeded on the basis of the proposal of the Special Rapporteur, made at the previous year's session, that he first focus on the question of groundwaters. His report provided a general framework for a set of draft articles on transboundary groundwaters, and proposed seven draft articles, divided into two Parts, namely Part I entitled "Introduction" (including two articles on scope and use of terms, respectively) and Part II entitled "General principles" (containing 5 draft articles on Principles governing uses of aquifer systems, the obligation not to cause harm, general obligation to cooperate, regular exchange of data and information and relationship between different kinds of uses). The report included an addendum providing some technical and factual data on transboundary groundwaters, as well as aquifer models, case studies on selected regional aquifers and a selected bibliography.7 The Commission established an open-ended Working Group on Transboundary Groundwaters, chaired by the Special Rapporteur. The Commission also had two informal briefings by experts on groundwaters from the Economic Commission for Europe (ECE), the United Nations Educational, Scientific and Cultural Organization (UNESCO), the Food and Agriculture Organization (FAO) and the International Association of Hydrogeologists (IAH). At the request of the Special Rapporteur, the Commission agreed that a questionnaire, prepared by the Special Rapporteur, be circulated to Governments and relevant intergovernmental organizations asking for their views and information regarding groundwaters.8
The General Assembly in resolution 59/41 of 2 December 2004 drew the attention of Governments to the importance for the International Law Commission of having their views on the various aspects involved in the topic, in particular on their practice, bilateral or regional, relating to the allocation of groundwaters from transboundary aquifer systems and the management of non-renewable transboundary aquifer systems relating to the topic.
At its fifty-seventh session, in 2005, the Commission had before it the third report9 of the Special Rapporteur as well as comments and observations received from 20 Governments and 3 relevant intergovernmental organizations.10 In his third report, the Special Rapporteur proposed a complete set of 25 draft articles containing the followng six parts: Part I entitled "Introduction" (articles 1 to 4 on scope, use of terms, bilateral and regional arrangements, relation to other conventions and international agreements, respectively), Part II entitled "General principles" (articles 5 to 11 on equitable and reasonable utilization, factors relevant to equitable and reasonable utilization, obligation not to cause harm, general obligation to cooperate, regular exchange of data and information, monitoring and relationship between different kinds of utilization, respectively), Part III entitled "Protection, preservation and management" (articles 12 to 15 on protection and preservation of ecosystems, protection of recharge and discharge zones, prevention, reduction and control of pollution, and management, respectively), Part IV entitled "Activities affecting other States" (articles 16 and 17 on assessment of potential effects of activities and planned activities, respectively), Part V entitled "Miscellaneous provisions" (articles 18 to 21 on scientific and technical assistance to developing States, emergency situations, protection in time of armed conflict, and data and information vital to national defence or security, respectively) and Part VI entitled "Final clauses" (articles 22 to 25 on signature, ratification, acceptance, approval or accession, entry into force and authentic texts, respectively). The report included an addendum setting out provisions of legal instruments relevant to some of the draft articles proposed by the Special Rapporteur.
The Commission considered the Special Rapporteur's report11 and established a Working Group.12 The Group reviewed and revised eight draft articles. The Commission subsequently took note of the report of the Working Group13 as well as of its proposal that it be reconvened at the 2006 session in order that it may complete its work. The Commission also had an informal technical presentation on the Guarani Aquifer System Project on 4 May 2005.14
At its fifty-eighth session, in 2006, the Commission decided to reconvene the Working Group on Shared Natural Resources, chaired by Mr. Enrique Candioti. The Working Group held five meetings and completed the review of the draft articles submitted by the Special Rapporteur in his Third report.15 The Commission subsequently adopted, on first reading, 19 draft articles on the law of transboundary aquifers and commentaries thereto. It decided, in accordance with articles 16 to 21 of its statute, to transmit the draft articles through the Secretary General for comments and observations, with the request that such comments and observations be submitted to the Secretary General by 1 January 2008. The General Assembly, in resolution 61/34 of 4 December 2006, expressed its appreciation for the completion of the first reading of the draft articles on the law of transboundary aquifers.
At its fifty-ninth session, in 2007, the Commission considered the fourth report of the Special Rapporteur,16 which focused on the relationship between the work on transboundary aquifers and any future work on oil and gas and recommended that the Commission to proceed with the second reading of the draft articles on the law of transboundary aquifers independently of any future consideration of oil and gas (see: Oil and Gas). The Commission also established a Working Group on Shared natural resources which addressed (a) the substance of the draft articles on the law of transboundary aquifers adopted on first reading; (b) the final form that the draft articles should take; and (c) issues involved in the consideration of oil and gas, and in particular prepared a questionnaire on State practice concerning oil and gas for circulation to Governments.17
The General Assembly, in resolution 62/66 of 6 December 2007, invited Governments to provide information to the International Law Commission on the topic and drew the attention of Governments to the importance for the International Law Commission of having their comments and observations by 1 January 2008 on the draft articles and commentaries on the law of transboundary aquifers adopted on first reading by the Commission at its fifty-eighth session.
At the sixtieth session, in 2008, the Commission had before it the fifth report of the Special Rapporteur comprising a set of 20 draft articles on the law of transboundary aquifers for the consideration of the Commission on second reading.18 The Commission also had before it the comments and observations received from Governments on the draft articles adopted on first reading.19 The Commission subsequently adopted, on second reading, a preamble and a set of 19 draft articles on the law of transboundary aquifers, with commentaries thereto. The draft articles were divided into five parts, as follows: Part I entitled "Introduction" (articles 1 and 2 on Scope and Use of terms, respectively), Part II entitled "General Principles" (articles 3 to 9 on sovereignty of aquifer States, equitable and reasonable utilization, factors relevant to equitable and reasonable utilization, obligation not to cause significant harm to other aquifer States, general obligation to cooperate, regular exchange of data and information, and bilateral and regional agreements and arrangements, respectively), Part III entitled "Protection, Preservation and Management" (articles 10 to 15 on protection and preservation of ecosystems, recharge and discharge zones, prevention, reduction and control of pollution, monitoring, management and planned activities, respectively), Part IV entitled "Miscellaneous Provisions" (articles 16 to 19 on technical cooperation with developing States, emergency situations, protection in time of armed conflict, and data, and information vital to national defense or security, respectively).20
The Commission also decided, in accordance with article 23 of its statute, to recommend to the General Assembly: (a) To take note of the draft articles on the law of transboundary aquifers in a resolution and to annex the articles to the resolution; (b) To recommend to States concerned to make appropriate bilateral or regional arrangements for the proper management of their transboundary aquifers on the basis of the principles enunciated in the draft articles; and (c) To also consider, at a later stage the elaboration of a convention on the basis of the draft articles.21
From 2009 onwards, the work continued in the context of Oil and Gas. At its sixty-second session (2010), the Commission decided not to take up the consideration of the transboundary oil and gas aspects of the topic.22
The General Assembly, in resolution 63/124 of 11 December 2008, took note of the draft articles on the law of transboundary aquifers presented by the Commission, the text of which was annexed to the resolution; commended them to the attention of Governments without prejudice to the question of their future adoption or other appropriate action; encouraged the States concerned to make appropriate bilateral or regional arrangements for the proper management of their transboundary aquifers, taking into account the provisions of the draft articles; and decided to revert to the item at its sixty-sixth session, in 2011, with a view to examining, inter alia, the question of the form that might be given to the draft articles.
In resolution 66/104 of 9 December 2011, the General Assembly recommended that the draft articles be considered by Member States when negotiating future agreements or arrangements for the management of their transboundary aquifers, as appropriate; encouraged the International Hydrological Programme of the United Nations Educational, Scientific and Cultural Organization, whose contribution had been noted in resolution 63/124, to offer further scientific and technical assistance to the States concerned; and decided to revert to this item at its sixty-eight session, in 2013, and, in the light of written comments of Governments, as well as views expressed in the debates held at its sixty-third and sixty-sixth sessions, to further examine, inter alia, the question of the form that might be given to the draft articles.
In resolution 68/118 of 16 December 2013, the General Assembly commended to the attention of Governments the draft articles on the law of transboundary aquifers annexed to that resolution as guidance for bilateral or regional agreements and arrangements for the proper management of transboundary aquifers.
By resolutions 68/118 of 16 December 2013, 71/150 of 13 December 2016, 74/193 of 18 December 2019 and 77/112 of 7 December 2022, respectively, the General Assembly encouraged the Intergovernmental Hydrological Programme of the United Nations Educational, Scientific and Cultural Organization to continue its contribution by offering further scientific and technical assistance to the States concerned and decided to include the item on the provisional agenda of its seventy-first, seventy-fourth, seventy-seventh and eighty-first sessions (2016, 2019, 2022 and 2026), respectively.
1 See Official Records of the General Assembly, Fifty-fifth Session, Supplement No. 10 (A/55/10), paras. 726–728 and 729 (3). For the syllabus on the topic, see ibid., annex (3).
2 See Official Records of the General Assembly, Fifty-seventh Session, Supplement No. 10 (A/57/10), paras. 20, 518 and 519.
3 Document A/CN.4/533 and Add.1. (see Analytical Guide)
4 See Official Records of the General Assembly, Fifty-eighth Session, Supplement No. 10 (A/58/10), paras. 19 and 374–381.
5 See Official Records of the General Assembly, Fifty-eighth Session, Supplement No. 10 (A/58/10), para. 373.
6 Document A/CN.4/539 and Add.1. (see Analytical Guide)
7 See Official Records of the General Assembly, Fifty-ninth Session, Supplement No. 10 (A/59/10), paras. 14 and 82–157.
8 See Official Records of the General Assembly, Fifty-ninth Session, Supplement No. 10 (A/59/10), paras. 79–81.
9 Document A/CN.4/551 and Corr.1 and Add.1. (see Analytical Guide)
10 Document A/CN.4/555 and Add.1. (see Analytical Guide)
11 See Official Records of the General Assembly, Sixtieth Session, Supplement No. 10 (A/60/10), paras. 34–107
12 See Official Records of the General Assembly, Sixtieth Session, Supplement No. 10 (A/60/10), para. 32
13 Document A/CN.4/L.681. (see Analytical Guide)
14 See Official Records of the General Assembly, Sixtieth Session, Supplement No. 10 (A/60/10), paras. 32–33
15 See Official Records of the General Assembly, Sixty-first Session, Supplement No. 10 (A/61/10), para. 70.
16 Document A/CN.4/580. (see Analytical Guide)
17 See Official Records of the General Assembly, Sixty-second Session, Supplement No. 10 (A/62/10), para. 14.
18 Document A/CN.4/591. (see Analytical Guide)
19 Document A/CN.4/595 and Add.1. (see Analytical Guide)
20 See Official Records of the General Assembly, Sixty-third Session, Supplement No. 10 (A/63/10), paras. 53 and 54.
21 See Official Records of the General Assembly, Sixty-third Session, Supplement No. 10 (A/63/10), para. 49.
22 See Official Records of the General Assembly, Sixty-fifth Session, Supplement No. 10 (A/65/10), paras. 377 and 384.
23 General Assembly resolutions 57/21 of 19 November 2002; 58/77 of 9 December 2003; 59/41 of 2 December 2004; 60/22 of 23 November 2005; 61/34 of 4 December 2006; and 62/66 of 6 December 2007.