Report of the International Law Commission on the Work of its 57th Session – Shared Natural Resources/ Unilateral Acts of States/ Reservations to Treaties
Mr. Chairman, I would like to thank the chairman of the Commission, Professor Djamchid Momtaz, for his introduction to the report of the Commission.
First, I would like to thank the Commission’s Special Rapporteur on the Shared Natural Resources, Professor Yamada, for his valuable work to date on this important subject.
The topic of Shared Natural Resources is undoubtedly a complex one, as there is still much to learn about transboundary aquifers in general, and specific aquifer conditions and State practice vary widely. As a result, the United States believes that context-specific arrangements are the best way to address pressures on transboundary groundwaters. Rather than producing another Convention, a more useful way forward would be for the Commission to develop a list of considerations or guidelines that States might take into account in negotiating more specific and meaningful bilateral or regional arrangements.
At a minimum, however, it is important to be clear that the Commission’s work on this topic does not represent a codification exercise, since the content of the proposed draft articles goes well beyond the established law. Declaratory articles, for example, would not be appropriate.
Finally, the United States notes that the Commission had decided, in considering the topic “Shared Natural Resources,” to address the issue of aquifers, a daunting task on its own. We support the Commission’s work on this important subject, and at the same time urge it to avoid taking on more controversial sub-topics, such as oil and gas, which could, in our view, detract value from the exercise overall.
Moving on to the topic of Unilateral Act of States, I also would like to thank the Commission’s Special Rapporteur, Mr. Victor Rodríguez-Cedeño, for his efforts to navigate this challenging subject and also, Mr. Alain Pellet, for his work to date as chairman of the Working Group on this topic.
The United States recognizes the particular challenges raised by this topic. Disagreements among members of the Commission after eight years of study on such fundamental issues as what might qualify as unilateral acts of states and how such acts should be classified and analyzed have slowed down progress on this topic. The Special Rapporteur’s Eighth Report serves to further demonstrate those continuing disagreements and, some might argue, raises doubts about the usefulness of further study of this topic.
For our part, we urge other States to consider carefully whether opportunities exist to consider bringing this project to conclusion in the near future. We very much appreciate the remarks, reflected in the most recent ILC report, about the importance of the part played by the addresses to whom unilateral statements are addressed, their reactions, and the reactions of third parties. The importance of such factors underscores that this is an area in which the specific context in which a unilateral act takes place -- as opposed to the act itself -- plays such a central role that it is hard to see this being an area that is amenable to codification of progressive development. Similarly, the importance, which is highlighted in the report, of intent -- on whether a state manifestly intends to undertake a legal commitment, as opposed to making statements not showing such a clear intent, or engaging in other forms of “unilateral conduct” -- remains critical, and this again highlights our view, which the Commission’s report indicates was reflected in the discussions with the Commission, that codification and progressive development are neither appropriate nor feasible.
As for the topic of reservations to treaties, I also would like to thank the Commission’s Special Rapporteur, Mr. Alain Pellet, for his work to date in this complex field.
The Commission has asked for States to comment on what the effect of an objection to a reservation is, if the objection is made on the grounds that the reservation is incompatible with the object and purpose of the treaty and if the objecting State does not oppose the entry into force of the treaty between itself and the reserving State. The report of the Commission notes that some States take the position that if a State has made a prohibited reservation, one that is incompatible with the object and purpose of a treaty, it may be bound by the treaty without the benefit of the reservation, should another party properly object to the reservation on that basis.
The United States does not agree. Although, certainly, as reflected in Article 19(c) of the Vienna Convention on the Law of Treaties (VCLT), reservations that are incompatible with the object and purpose of a treaty are not permitted. Nevertheless, an objecting State must determine if it is desirable to remain in a treaty relationship with a reserving State, despite the existence of what it considers to be an impermissible reservation. Alternatively, if an objecting State rejects a treaty relationship with a reserving State on the basis of an objectionable reservation, the reserving State can always withdraw its reservation. To suggest that a State can be bound to a treaty without the benefit of a reservation it has made would be in direct conflict with the basic principle of consent.