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STATEMENT BY KOICHI HASEGAWA
DELEGATION OF JAPAN
ON ITEM 80: REPORT OF THE INTERNATIONAL LAW COMMISSION
ON THE WORK OF ITS SIXTIETH SESSION
WEDNESDAY, 26 OCTOBER 2005
UNITED NATIONS, NEW YORK
I would like to address the three items, namely Shared Natural Resources, Unilateral Acts of States, and Reservation to Treaties.
SHARED NATURAL RESOURCES
Mr. Chairman, let me comment briefly on the topic of "Shared Natural Resources", Chapter IV of the Report.
My delegation supports the current work of the Commission on the topic of "Shared Natural Resources", and welcomes the third report submitted by the Special Rapporteur at this fifty-seventh session of the Commission, in which he sets out a full set of draft articles with commentary. We commend the Commission for the substantial progress made this year on this topic, and especially for the establishment of the Working Group, chaired by Mr. Candiotti, which will surely facilitate the deliberations of the Commission on this topic.
As is often reiterated, groundwater is a vital and indispensable resource required by human beings in order to sustain daily life. We believe that it was quite appropriate for the Commission to have chosen "transboundary groundwaters" as the first subject of its study on this topic, and, taking into account its importance, careful consideration of the subject is to be expected. In this regard, the assistance from the experts on groundwater from international organizations such as the United Nations Educational, Scientific and Cultural Organization (UNESCO), the Food and Agriculture Organization (FAO) and the International Association of Hydrogeologists (IAH) is highly appreciated.
In view of the critical nature of the subject, we consider that the Commission must draw some conclusions and produce output at an early stage. The shortage of groundwater resources, as a result of over-exploitation and pollution, is now one of the clear and imminent environmental threats that we face on a worldwide scale. There is an absolute need to have some legal framework on this topic, and it is the Commission's task to respond to such need within an appropriate time. In order to achieve that, it is our view that the Commission should avoid being overly ambitious by trying to incorporate premature rules and principles into this instrument.
We note that, throughout the discussion at the Commission this year, some members insisted on including in the instrument provisions on the precautionary principle or the duties of non-aquifer states. We are concerned that the incorporation of such rules may result in long years of unnecessary debate at the Commission, and, even if some conclusions eventually can be reached, the whole subject may turn out to be rather outdated by the time that is accomplished. From that point of view, we believe that the Commission should address the issue in a realistic manner, and we expect the Commission to maintain, or even hasten, the pace of its consideration on this subject, so that it will be able to contribute to the solution of the problem.
In the third report, the Special Rapporteur proposed to differentiate the treatment between recharging and non-recharging aquifers, for the reason that different rules would be applicable in respect of each category of aquifer. Some members of the Commission pointed out that the criteria for that distinction, that is to say, the negligible or non-negligible amount of current water recharge, seemed insignificant from a practical perspective. We nonetheless support the proposal by the Special Rapporteur. Admittedly, from a purely theoretical and technical perspective, there may be cases in which making such a distinction is not easy, but we consider that it would be sustainable in respect of most of the transboundary aquifers, and it would be also feasible for the purposes of this instrument to adopt such a distinction.
Concerning Article 7 of the draft articles presented in the third report, there was a debate among members of the Commission concerning the reference to "compensation" in the article. Some members expressed support for the inclusion of the provision dealing with liability, while others suggested its deletion. We regard the problem of liability or responsibility as a matter more properly dealt with in other instruments, such as in the work by the Commission on "International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law" or "State Responsibility", and believe that inclusion of these rules in this instrument may complicate the work of the Commission. Therefore, if reference to "compensation" is to be made in the instrument, we consider it appropriate to keep it in a non-obligatory form, as proposed by the Special Rapporteur in his draft article.
As regards the form of the final instrument, my delegation fully agrees with the Special Rapporteur that the Commission should focus on the substance rather than the form at this early stage, and that the present form should not be considered as intended to prejudge the final outcome. We believe that the final form should be decided by the Commission at a later stage, taking into account of the views presented at the Sixth Committee.
Having raised these points, Japan supports the proposal of the Working Group to reconvene in the fifty-eighth session, in order to complete the process of reviewing and revising the draft articles. We hope that the Commission will make further substantial progress next year, and proceed to the drafting process at the earliest possible date.
UNILATERAL ACTS OF STATES
Mr. Chairman, let me turn to the topic of "Unilateral Acts of States", Chapter IX of the Report.
My delegation appreciates the efforts of the distinguished Special Rapporteur, Ambassador Victor Rodriguez-Cedeño, in dealing with this difficult topic of "unilateral acts of States" and welcomes his eighth report.
The eighth report, submitted by the Special Rapporteur this year, contains a detailed presentation of 11 examples or types of such unilateral acts. As the Special Rapporteur himself mentioned, we are all aware that the concept of "unilateral acts of States" is not without ambiguity, and there is a lack of common understanding on the basic concept. We therefore consider the Special Rapporteur to have been correct in devoting the major part of his examination to relevant State practices, in order to deepen our understanding on this topic.
At the same time, it must also be admitted that the debate on this topic has had a tendency to go in circles, and that nine years of consideration have not produced as significant an achievement as might have been expected at the outset. We understand that this is largely due to the diversity of the State practices which are categorized as "unilateral acts of States". As is clear from the eighth report by the Special Rapporteur, the form, content, authors and addressees of the acts are diverse, and the prospects for the Commission to reach a useful definition of this concept are not very promising. The Commission may come up with a definition at some stage, but it seems at this point that it will be difficult to formulate a definition which represents a meaningful legal concept covering all the acts discussed under this subject.
In this regard, we note that some members of the Commission have expressed their doubts as to the appropriateness of this topic for codification. We should be aiming at the codification of the topic "unilateral acts of States" as a means of providing us with some guidelines concerning the extent to which States may be considered bound by their own voluntary commitments. The elaboration of a legal regime applicable to such acts would contribute to the clarification of the legal effect of certain unilateral acts and thereby enhance certainty and stability in international relations. But in order to be productive on this issue, the Commission may have to limit its scope by concentrating on certain categories of acts, rather than to proceed on the codification under the general heading of "Unilateral Acts of States".
As to the points raised by the Commission for the comments and observations of our government, we consider that the revocability and modification of the unilateral act depends on the form, content, authors and addressees of said act, and must be determined by examining each category or type of unilateral act.
With the aforementioned points in mind, we will continue to pay attention in future to the direction taken by the Commission in its work on this topic. We also look forward to the preliminary outcome on the topic of "unilateral acts of States", which is to be submitted by the Special Rapporteur in the next session of the Commission, with the expectation that it will facilitate further consideration on this topic.
RESERVATION TO TREATIES
My delegation offers its appreciation of the dedication shown by the Special Rapporteur, Professor Alain Pellet, in addressing the topic of "Reservation to Treaties ". We also highly appreciate the most recent efforts of the Commission in adopting the draft guidelines and their commentaries.
While my delegation shares the view of the Special Rapporteur that the guidelines must be as detailed and comprehensive as possible in order to be practical and workable, we also wish to note that ten years have now passed since the Commission began its consideration on this topic. Taking into account the anticipated, it would be appreciated if the consideration were completed in a timely manner, and the whole set of guidelines presented to us in the near future. We request the Special Rapporteur to provide us with the timeline for the completion of the work at the Commission next year.
In his tenth report, the Special Rapporteur proposed to use the term "validity" instead of much disputed terms such as "permissibility", "admissibility" and "opposability". We basically support the approach taken by the Special Rapporteur to use a much more neutral term in order to avoid eliciting the largely academic debate on the legal nature of the reservation. Such an approach might serve to facilitate the consideration at the Commission. However, it may be more pragmatic to leave the terms in brackets for the time being and come back later on this term, after considering all the possible effects of reservations.
We would like to comment briefly on the specific points raised by the Commission for the Governments to consider. When a Member State objects to a reservation by another State, the effect of such objection is to exclude the application of the provision in response to which the reservation was formulated. Even if the objecting State declares that the reservation is incompatible with the object and purpose of the treaty, it can maintain treaty relations with the reserving State in respect of all other provisions by avoiding expressing its objection to the entire treaty relationship with the latter State. Unless a third party organ such as an international court decides the object and purpose of the treaty, it is usually up to each individual Member State to decide these matters. It should also be noted that a common understanding on the object and purpose of the treaty can be formed through the accumulation of instances of objection, acquiescence or approval with regard to the reservation. If a State objects to another State's reservation, declaring that it is not compatible with the object and purpose of the treaty without opposing the entry into force of the treaty between themselves, the immediate effect of the objection is limited to the exclusion of the relevant provision. However, by declaring the incompatibility, the objecting State expresses its interpretation of the treaty, which has the effect of influencing other States' interpretations. Such declaration may also send a message to the reserving State, which may feel obliged to withdraw the reservation if it is objected to by the majority of States.
My delegation hopes for a detailed discussion of this issue, including consideration of the points we have just raised, at the next session of the Commission.
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