General Assembly Session 51 meeting 99

The Acting President

As indicated in operative paragraph 2 of draft resolution A/51/L.72, the text of the draft Convention is contained in paragraph 10 of document A/51/869.

I call on the representative of Japan, who will deliver a statement on behalf of the Chairman of the Working Group of the Whole of the Sixth Committee.

Mr. Takasu (Japan)

It is my honour and pleasure to introduce the report of the Sixth Committee, convening as the Working Group of the Whole, for the elaboration of a convention on the law of the non-navigational uses of international watercourses. The Chairman of the Working Group, Ambassador Chusei Yamada of Japan, is unable to be present in New York today and he requested me to present the report of the Working Group on his behalf.

It is appropriate at this juncture to recall briefly that the International Law Commission (ILC), at the request of the General Assembly in 1970, included the topic of the law of the non-navigational uses of international watercourses in its programme of work. Since then, the ILC has been working on this matter; it finally completed its work in 1994 and submitted a final draft to the General Assembly.

The Assembly decided in its resolution 49/52 that the Sixth Committee should convene as a Working Group of the Whole to complete the work on the draft and to prepare it for adoption as a convention. The Working Group held its first meeting in October 1996. It was, however, unable to complete its task that year. The Assembly decided in its resolution 51/206 to extend the mandate of the Working Group. The second session of the Working Group was held in March and April of this year.

Members will also recall that the General Assembly, in extending the mandate of the Working Group, decided that, on the completion of its mandate, the Working Group of the Whole should report directly to the General Assembly. The Working Group has now completed its task and the report of the Working Group is contained in document A/51/869 before the Assembly.

The report of the Working Group is comprised of three parts: Part I, "Introduction", describes the background and the mandate of the Working Group. Part II, "Consideration of proposals", contains a factual account of all the proposals submitted to the Working Group; it also contains the statements of understanding of which the Chairman of the Working Group took note. Part III of the report, entitled "Recommendation of the Working Group of the Whole", contains the text of the draft Convention on the Law of the Non-Navigational Uses of International Watercourses adopted by the Working Group. The Working Group therefore recommended that the General Assembly adopt the text as a convention.

In this connection, as regards article 34, the dates concerning the opening for signature and the deadline for signing the Convention have been left blank in the report of the Working Group. After informal consultations, it is my understanding that there is a consensus to complete article 34, which is now bracketed, to read as follows:

"The present Convention shall be open for the signature by all States and by regional economic integration organizations from 21 May 1997 until 20 May 2000 at United Nations Headquarters in New York."

In other words, after having been adopted, the Convention will be open for signature from today for a period of three years.

I have been requested by the Chairman of the Working Group to convey his sincere thanks and gratitude to all the delegations that participated in the Working Group, the coordinators, the Chairman of the Drafting Committee, the Expert Consultant and Special Rapporteurs. The cooperative efforts of all these people culminated in the successful completion of the Working Group.

This concludes my introduction of the report of the Sixth Committee, which convened as the Working Group of the Whole for the elaboration of a convention on the law of non-navigational uses of international watercourses.

The Acting President

I now call on the representative of Mexico to introduce draft resolution A/51/L.72.

Mr. Tello (Mexico)

I have the honour to speak today on behalf of the following States, sponsors of draft resolution A/51/L.72 before the General Assembly for consideration: Antigua and Barbuda, Bangladesh, Bhutan, Brazil, Cambodia, Canada, Chile, Denmark, Finland, Germany, Greece, Hungary, Italy, Japan, Lao People's Democratic Republic, Liechtenstein, Mexico, Malaysia, Nepal, Netherlands, Norway, Portugal, Republic of Korea, Romania, Sudan, Sweden, Syrian Arab Republic, Tunisia, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay and Venezuela. I also wish to announce that the following States have joined the list of sponsors published with the draft resolution: Cameroon, Grenada, Honduras, Jordan, Latvia and Viet Nam.

Draft resolution A/51/L.72 provides for the adoption and opening for signature of the Convention on the Law of the Non-Navigational Uses of International Watercourses, an instrument that we are convinced will contribute to the equitable and reasonable use of transboundary water resources and their ecosystems, as well as to their preservation, to the benefit of current and future generations.

The sponsors understand the Convention to form an integral part of draft resolution A/51/L.72 and that it will be annexed to it in its final form. This instrument undoubtedly marks an important step in the progressive development and codification of international law, the promotion of which is a fundamental responsibility of this Assembly. The adoption of the draft text will be the culmination of a lengthy analytical process in which the International Law Commission, which was entrusted with the preparation of the articles, and the States Members and observers of the United Nations participated with keen interest and dedication.

In addition to adopting and opening the Convention for signature, the draft resolution expresses deep appreciation to the International Law Commission for the elaboration of the draft articles that served as the basis of the work of the Working Group of the Whole of the Sixth Committee, and to the special rapporteurs for their contribution to that work.

As the representative of Japan just stated in introducing the report of the Working Group of the Whole of the Sixth Committee, the Convention on the Law of the Non-Navigational Uses of International Watercourses will remain open for signature for a period of three years. The sponsors are convinced that this instrument will contribute to enhancing cooperation and communication among riparian States of international watercourses, and urge all States members of the General Assembly to support draft resolution A/51/L.72.

The Acting President

We have heard the last speaker in the debate on this item. The Assembly shall now proceed to consider draft resolution A/51/L.72.

I shall now call on those representatives who wish to explain their votes before the voting. May I remind delegations that explanations of vote are limited to 10 minutes and should be made by delegations from their seats.

Mr. Mwakawago (Tanzania)

The United Republic of Tanzania welcomes the opportunity to address the General Assembly on agenda item 144 concerning a draft resolution on the Convention on the Law of the Non-Navigational Uses of International Watercourses, a matter of importance to our country.

The draft resolution before us, in its second preambular paragraph, correctly recalls resolution 2669 (XXV) of 8 December 1970, by which the General Assembly recommended that the International Law Commission (ILC) take up the study of the law of the non-navigational uses of international watercourses with a view to its progressive development and codification. One must wonder, therefore, to what degree the law in this subject has been developed or codified by the draft Convention before us.

In responding to this concern, we would be failing in our duty if we were not to acknowledge and appreciate the useful work undertaken by the International Law Commission, which provided the basis for negotiations within the Sixth Committee. The efforts made by its Rapporteurs in guiding the Committee deserve equal appreciation. It is in this regard that we feel obligated to express particular gratitude to Mr. Robert Rosenstock for his work in the Working Group of the Whole. We also wish to pay tribute to the Chairman of the Working Group, Mr. Chusei Yamada, for his leadership and patience, and to Mr. Hans Lammers for his remarkable leadership in the Drafting Committee. In the end, responsibility for the draft text of the Convention before us and its apparent failings must rest solely with ourselves, the negotiating States.

It will be no exaggeration to say that the draft Convention before us is not perfect and that it could have been better. We are keenly aware that this draft convention is, to an appreciable extent, the product of a deadline. Partly as a result of the constraint of time and partly due to lack of consensus on a number of key provisions, not only did those provisions have to be adopted by a vote, but the draft Convention was itself voted upon. Since this is the background against which the draft Convention comes before us, we would like to highlight some of the difficulties our country is facing with regard to it.

First of all, we continue to consider article 6, regarding factors relevant to equitable and reasonable utilization, as constituting a suitable compromise in the context of interests as diverse as those that exist. We find, however, that the delicate balance contained in the ILC draft text on articles 5, 6 and 7 was undone by the introduction in article 5 of the unspecified and unqualified reference to a demand

"to tak[e] into account the interests of the watercourse States concerned". (A/51/869, para. 10)

Seemingly, this expands the scope of the parameters established under articles 6 and 7 and thus, in our view, introduces an element of uncertainty with considerable consequences to article 6. It is in this regard that the United Republic of Tanzania voted against the Chairman's package on these articles in the Working Group. Our position on the subject remains unchanged.

Secondly, we also find an undue imbalance in the context of the draft Convention -- which, admittedly, is a framework instrument, but which, on the one hand, appropriately urges States to take all appropriate measures in due regard to its provisions, while on the other, in quite absolute terms, subjects the freedom of other States to act to the consent of others.

Thirdly, while we welcome basin-wide environmental regulatory measures as a necessary step towards environmental protection, we are concerned that, without addressing the varying capabilities between and among States for monitoring and compliance, the strictness of the provisions of the Convention may in some instances be a veritable barrier for cooperation between such States. We cannot justifiably claim to develop international law while the reality of such consequential aspects, which are central to its application and acceptance, are presented only as obligations without the attendant mechanisms to aid such harmonized application and compliance.

Fourthly, we remain troubled by a general provision requiring non-discriminatory but selective judicial access to persons beyond the jurisdiction of a State. It would be a matter of contradiction of justice were a State to allow such unhindered access to those claiming injury as a result of a right arising under the Convention, while preventing others from seeking redress to its judicial organs on matters other than those prescribed by the draft Convention. Most importantly though, that obligation fails to address constraints facing States in whose jurisdiction a cause of action is strictly territorial. It is no small wonder, therefore, that obligations which other States have been able to assume only between or amongst themselves, or in a regional context, through elaborate treaties can in the present draft Convention be imposed upon States by the generalities of a single paragraph.

Fifthly, it is noteworthy that, because the draft Convention as presently framed not only preserves but authenticates existing agreements on the non-navigational uses of international watercourses, the extent to which the law on the subject has been codified remains doubtful. The United Republic of Tanzania is, in a number of instances, both an upstream and downstream riparian on watercourses that may be described as international and its expectations were thus in favour of an instrument establishing a common regime.

Lastly, the draft Convention is to enter into force on the ninetieth day following the date of deposit of the thirty-fifth instrument of ratification or accession. Out of the current 185 States Members of the United Nations, a total of 35 represents a mere 18 per cent. This percentage is even lower if regional economic integration organizations are taken into account. Needless to say, the magnitude of this quantitative aspect as a notion of applicability and acceptance leaves a lot to be desired.

On account of these considerations, the United Republic of Tanzania will join those in this Assembly that will not be voting in support of the draft resolution before us.