VZCZCXYZ0014
PP RUEHWEB

DE RUCNDT #1094/01 3242213
ZNR UUUUU ZZH
P 192213Z NOV 08
FM USMISSION USUN NEW YORK
TO SECSTATE WASHDC PRIORITY 5401

UNCLAS USUN NEW YORK 001094 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PREL UNGA
SUBJECT: UNGA/C-6: THE SIXTH (LEGAL) COMMITTEE DEBATES THE 
ANNUAL REPORT OF THE INTERNATIONAL LAW COMMISSION (ILC), 
CHAPTERS 1 - 5, AND 12 
 
 ¶1.  Summary:  The 63rd UNGA Sixth Committee held part one of 
a three-part debate on the Report of the International Law 
Commission (ILC) (A/63/10) October 27-28.  Part one's topics 
included: Chapters 1-3, "Introductory Chapters;" Chapter 4, 
"Shared Natural Resources;" Chapter 5, "Effects of armed 
conflicts on treaties;" and Chapter 12, "Other Decisions." 
Interventions primarily centered on natural resources, 
transboundary aquifers in particular, and the effects of 
armed conflicts on treaties.  Many speakers supported using 
the articles on transboundary aquifers as guidelines for 
bilateral agreements with the possibility of using them later 
as the basis for an international instrument.  Paragraph 10 
lists the countries that made interventions.  End Summary. 
 
 
¶2.  Part two of the ILC debate included Chapter 6, 
"Reservations to Treaties;" Chapter 7 "Responsibility of 
International Organizations;" and Chapter 8, "Expulsion of 
Aliens" (Septel).  Part three's discussion covered Chapter 9, 
"Protection of persons in the event of disasters;" Chapter 
10, "Immunity of State Officials from foreign criminal 
jurisdiction;" and Chapter 11, "the Obligation to extradite 
or prosecute (aut dedere aut judicare)" These two parts will 
be addressed in a separate cable. 
 
PRESENTATION OF CHAPTERS 1-5, 12 
-------------------------------- 
 
¶3.  In his introductory statement on Chapters 1-5, and 12, 
Chairman of the ILC, Edmundo Vargas Correno noted that the 
ILC has completed, on second reading, a set of 19 draft 
articles on the law of transboundary aquifers.  The text of 
the articles can be found in paragraphs 53 and 54 of the 
report (A/63/10).  The Chairman also introduced 18 draft 
articles on Chapter 5, which can be found in paragraphs 65 
and 66.  He noted that the ILC has included two new topics on 
its agenda for the next year, "Treaties over time," and "The 
Most-Favored-Nation Clause." 
 
DEBATING THE FORM OF THE ARTICLES ON 
TRANSBOUNDARY AQUIFERS 
------------------------------------- 
 
¶4.  Many states welcomed the adoption of the draft articles, 
but delegates disagreed on the final form the articles should 
take.  USUN stated its position that the articles should be 
recast as recommendatory, non-binding principles.  Canada - 
noting the bilateral treaties and mechanisms in place between 
Canada and the United States -- argued that the issue of 
transboundary aquifers is essentially bilateral.  The 
representative continued that use of the articles for 
anything more than guidelines for bilateral agreements would 
be problematic for his delegation.  Russia, Australia, 
Brazil, and Hungary also said that the articles should remain 
generic principles to guide States in negotiating regional 
agreements.  However, twenty of the countries that spoke 
supported a two-part approach.  First the articles could be 
appended to a resolution for State use in bilateral or 
regional arrangements.  A legally binding international 
instrument could be considered later.   Although Italy said 
that a convention would probably not add any value, its 
delegate urged the General Assembly to make a decision on the 
final outcome of the articles in the 63rd session rather than 
delay it to the indefinite future. 
 
¶5.  Delegates had many substantive comments on the articles. 
Several representatives said that the articles should reflect 
the principle that States should not cause harm to other 
aquifer states.  Austria held that a joint management 
mechanism is only one of the possibilities for bilateral or 
regional cooperation.  Norway and Greece believed that the 
threshold of "significant" harm in articles 6 and 12 was too 
high.  Philippines called for greater clarity on the 
articles' extension to non-aquifer States.  Saudi Arabia 
argued that the articles should more effectively address 
banning "directional slant and horizontal drilling."  The 
representative of Saudi Arabia also stated the need for 
differentiation between desert areas and those rich in 
groundwater, prioritizing the use of groundwater for 
drinking. 
 
¶6.  On November 14, the Sixth Committee recommended by 
consensus that the General Assembly adopt a draft resolution 
on this issue, which (a) encourages States concerned to make 
appropriate bilateral or regional arrangements for the proper 
management of their transboundary aquifers, taking into 
account the provisions of these draft articles; and (b) 
includes the transboundary aquifers item on the provisional 
agenda of its sixty-sixth session - i.e., three years from 
now - "with a view to examining, inter alia, the question of 
the form that might be given to the draft articles." 
 
TRANSBOUNDARY OIL AND GAS RESERVES 
 
 
 
---------------------------------- 
 
¶7.  Norway, Australia, Russia, Germany and Slovenia agreed 
that the challenges of managing transboundary gas and oil 
reserves are quite different from aquifers.  These issues 
require the flexibility of negotiated bilateral agreements, 
which reflect States' sovereign rights. They thus did not 
support the ILC engaging in work on this issue. The United 
States also expressed the view that it would not be 
productive for the ILC to take up the issue of transboundary 
oil and gas resources, per Department guidance.  Mexico also 
believed that oil and gas reserves should be considered 
separately from transboundary aquifers. However, Mexico 
argued that the issue falls within the potential scope of the 
ILC's work.  In particular, the Mexican representative said 
that the ILC could usefully study, analyze and compare 
various unitization arrangements.  Australia agreed the ILC 
could take up gas and oil resources.  Poland argued that the 
scope of the transboundary aquifers might be worth expanding 
to include other natural resources such as oil and gas. 
 
EFFECTS OF ARMED CONFLICTS ON TREATIES 
-------------------------------------- 
 
¶8.  The debate highlighted differing opinions on the draft 
articles' scope regarding the armed conflicts that would 
affect treaties.  Austria and Japan said that the definition 
of armed conflict in the articles is a circular one, and thus 
unhelpful.  Austria, Russia, Portugal and Italy called for a 
clarification of the differences between belligerent, 
non-belligerent and third nations in the way a treaty would 
be affected in a conflict.  For example, Portugal stated that 
the articles should not include situations where only one 
party to a treaty was involved in a conflict. According to 
Department guidance, USUN delivered its position that 
defining "armed conflict" would likely be counterproductive. 
Rather, the articles should make clear that armed conflict 
refers to the set of conflicts covered by articles 2 and 3 of 
the Geneva Conventions.  Belarus and Ghana argued that 
criteria should be added to the articles about the scope and 
length of a conflict that would affect a treaty.  The 
Republic of Korea held that States should have some 
discretion in suspending treaties.  Greece called for the 
articles to make more extensive reference to doctrine and 
practice from civil law.  Netherlands questioned the 
practical relevance of the articles altogether. 
 
INCLUDING INTERNAL CONFLICTS IN THE SCOPE 
------------------------------------------ 
 
¶9.  Finland argued that Articles 1 and 3 should apply also to 
internal armed conflicts.  The representative stated that 
these conflicts affect the operation of treaties as much as 
international conflicts.  Switzerland, Hungary, Poland, and 
Iran also agreed that internal conflicts should be included 
in the definition of armed conflicts. However, others 
supported limiting the definition to international conflicts. 
 
 
ARE LISTS OF CATEGORIES RELEVANT? 
--------------------------------- 
 
¶10.  There was no consensus on the usefulness of the proposed 
comprehensive list of categories of treaties that would be 
affected by conflicts.  Indonesia and Cyprus supported 
including the list of categories of treaties in an annex. 
Finland did not support a list of treaties, believing that a 
case-by-case consideration would be more appropriate.  India 
believed that it would be more helpful to list factors that 
could lead to the suspension of provisions of a treaty, or 
lead to a conclusion of a treaty.  Israel argued that the 
list of relevant criteria would suffice.  Iran claimed that 
the ILC did not sufficiently highlight the exceptional status 
of treaties such as those modifying land and maritime 
boundaries, which would not change in the event of a 
conflict.  Belarus proposed a discussion of the feasibility 
of extending the draft articles to include treaties involving 
international organizations. 
 
LIST OF SPEAKERS 
---------------- 
 
¶11.  The following countries made interventions: Norway (on 
behalf of the Nordic Countries - Chapter 4), Finland (on 
behalf of the Nordic countries - Chapter 5), Argentina, 
Australia, Austria, Belarus, Brazil, Canada, China, Cyprus, 
Czech Republic, El Salvador, France, Germany, Ghana, Greece, 
Hungary, India, Indonesia, Iran, Israel, Italy, Japan, Kenya, 
Lebanon, Mexico, Malaysia, Netherlands, New Zealand, Nigeria, 
Philippines, Poland, Portugal, Republic of Korea, Russia, 
Saudi Arabia, Slovenia, Switzerland, United Kingdom, United 
States, and Uruguay. 
 
 
 
Khalilzad