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Mr. Chairman,
Mr Chairman let me say at the outset that the subject of responsibility of international organisations seems to be progressing well under the able and careful guidance of the Special Rapporteur. It is an important one and we recognise that it involves consideration of some complex and delicate issues. Amongst those issues discussed in this year’s report is the conduct of organs or agents placed at the disposal of an international organisation which includes the situation of peacekeeping forces. The attribution of conduct to the international organisation or the relevant state is a potentially difficult matter. The test favoured by the Commission and set out in draft article 5 is the factual one of effective control. As a practical matter we think this is right.
With regard to the issues relating to his next report on which the Special Rapporteur is seeking comment we would offer the following views. First, that the Commission should not go too deeply, if at all, into the question of breaches of obligations that an international organisation may have to its member states or agents under the rules of the organisation. Second, we have some concerns about necessity as a ground that may be invoked by a state for precluding the wrongfulness of an act that would otherwise be contrary to international law as provided for in Article 25 on State Responsibility. We would have even more concern about any suggestion that an international organisation could invoke necessity in similar circumstances. We have difficulty envisaging what could constitute the “essential interests” of an international organisation that could be protected against a “grave and imminent peril” only by a breach of international law. Third, if a member state takes an action at the request of an international organisation that is in breach of the international legal obligations of the state and the organisation then we consider that the organisation as well as the state should be regarded as responsible at international law. We are inclined to think the same should be true even if the conduct in question is not specifically requested by the organisation but is specifically authorised.
Mr Chairman I would now like to turn to the topic of shared natural resources. As a remote island country we do not have any transboundary groundwaters that is the focus of the Commission’s current work. We are nonetheless aware of the important role of these transboundary underground acquifer systems in many parts of the world today and the virtual certainty that their significance can only increase.
It is not only a vitally important subject, but it is also a subject that involves a high level of scientific and technical complexity. In that regard we continue to support the approach of the Special Rapporteur in ensuring that his own work and the Commission’s consideration of that work is supported by appropriate briefings from scientific and technical experts.
As we do not have any transboundary acquifers we are not able to provide any information about practice relating to the allocation and management of transboundary acquifer systems in response to the request for such information in Chapter III of the Commission’s Report. We would like to offer some general comments, however, that may be relevant to the general framework proposed by the Special Rapporteur and the principles to be incorporated in the draft articles.
The first comment is that it is clear from the information included in the reports of the Special Rapporteur that most underground acquifers have very different characteristics from those of surface waters such as rivers and lakes that are covered by the 1997 Convention on the Non-navigable Uses of International Watercourses. In particular the fact that they are very slow moving means that if they become polluted it may prove difficult if not impossible to clean them up in any meaningful timescale. Moreover effective compensation may be unachievable. Accordingly, although many of the principles of the ’97 Convention would seem to be relevant to transboundary acquifers there is a question whether the principles and rules relating to the latter should place a greater emphasis or priority on environmental protection and prevention of pollution.
Our final comment on this topic is that the concept of equitable and reasonable utilisation embodied in the ‘97 Convention is not easy to apply in relation to an acquifer system that receives no recharge and is therefore non-renewable. We have no clear ideas as to how to give meaning to this concept in this context but perhaps there could be consideration of the idea that non renewable transboundary acquifers should be drawn down on at rates commensurate with ability of all the relevant states to ensure alternative water supplies for their people.
Thank you Mr Chairman
