Report of the International Law Commission by Mr. Milan Dufek Head of Public International Law Division Ministry of Foreign Affairs of the Czech Republic
19.11.2007 / 21:32
At the beginning of my remarks on reservations to treaties, I would like to express the appreciation and thanks to the Commission, in particular to Special Rapporteur Mr. Alain Pellet, for the work on this practical but theoretically demanding and extensive subject
Mr. Milan Dufek
Head of Public International Law Division
Ministry of Foreign Affairs of the Czech Republic
Agenda Item 82:
Report of the International Law Commission
I. Reservations to Treaties
II. Shared Natural Resources
New York, November 1, 2007
Check Against Delivery
I. Reservations to treaties
At the beginning of my remarks on reservations to treaties, I would like to express the appreciation and thanks to the Commission, in particular to Special Rapporteur Mr. Alain Pellet, for the work on this practical but theoretically demanding and extensive subject.
The delegation of the Czech Republic would like to offer several observations on some parts of this year's results of work of the Special Rapporteur and of the Commission in considering matters relating to the formulation and withdrawal of objections to reservations.
At the general level, the delegation of the Czech Republic welcomes the importance attached by the Special Rapporteur and the Commission to the "reservations dialogue" of States and international organizations concerned in formulating reservations and objections to reservations. This dialogue can significantly help make clear legal positions on the nature of concrete reservations and their relations to a specific international treaty, namely in cases where an objection is based on alleged incompatibility of the reservation with the object and purpose of the treaty.
We therefore support draft guideline 2.6.10 which, in the form of a recommendation, invites States and international organizations to indicate, whenever possible, the reasons why an objection is being made to the reservation formulated by another State or international organization. The discussion in the Commission showed that it would probably be appropriate to include in the draft also a guideline recommending the explanation of the reasons for the withdrawal of objections. In this connection, the Czech delegation regards as useful the ideas of the Special Rapporteur and of the Commission to include in the draft a similar guideline recommending that States and international organizations should also give reasons for their reservations to international treaties. We would therefore welcome the elaboration on these ideas by the Special Rapporteur and by the Commission, including, inter alia, their relationship to the problem of vague or general reservations dealt with in guideline 3.1.7 adopted at this year's session of the Commission together with a commentary.
For the reasons I have mentioned, the delegation of the Czech Republic supports also the conclusions of the Special Rapporteur concerning the formulation of late objections, i.e. objections formulated after the end of the time period specified in Article 20, para. 5 of the Vienna Convention on the Law of Treaties, or after special periods specified in a specific international treaty. Although such objections cannot produce the effects anticipated in the provisions of Article 20, para. 4(b) and Article 21, para. 3 of the Vienna Convention, the Czech delegation is of the opinion that they are a significant means of the "reservations dialogue" and a source of information for international courts, monitoring bodies and possibly also other entities considering the validity of a reservation concerned. However, we are at the same time of the opinion that the text of guideline 2.6.15 proposed by the Special Rapporteur should be modified so as to correspond to the mentioned conclusions. The draft text of the guideline appears to be too brief and general and does not include either the facts or recommendations worth mentioning in relation to late objections. As the discussion in the Commission on this provision showed, another fact appearing as rather unclear is that the draft guideline admits, without any specification, that late objections may produce certain legal effects. This appears to be in contradiction with the conclusions I have mentioned. My delegation will further welcome a detailed consideration by the Special Rapporteur and the Commission of the possibility mentioned in this year's debates of the Commission, i.e. that late objections be governed mutatis mutandis by the regime for interpretative declarations.
The delegation of the Czech Republic is also of the opinion that the Commission should give a thorough consideration to draft guideline 2.6.14 concerning the regime of pre-emptive objections. At the general level, we regard such preventive communication as a suitable practice enabling a State to safeguard its rights arising from a specific treaty and to communicate its legal position on potential or future reservations to such a treaty. At the same time, the Czech delegation, however, shares to some extent the doubts that were noted during the Commission's discussion, and according to which the draft guideline could in some cases give rise to confusion between political or interpretative declarations and declarations intended to produce specific legal effects. According to my delegation, worth further consideration is also the question whether or not a pre-emptive objection can reflect in all cases the concrete contents of potential or future reservations to which such pre-emptive objection is applied.
II. Shared natural resources
Now I would like to turn to the topic of Shared natural resources.
First, I would like to appreciate the work of the International Law Commission on topics related to shared natural resources. I would like to thank in particular Special Rapporteur, Ambassador Chusei Yamada for his Fourth Report, and Mr. Enrique Candioti for successfully chairing the Working Group on Shared Natural Resources during this year's session of the International Law Commission.
This year, the International Law Commission dealt with relationship between groundwaters and oil and natural gas. Despite the existence of many similarities between groundwaters and oil and natural gas issues, the Czech Republic rather sees differences. Therefore, we are of the opinion that the reading of the draft articles on the law of transboundary aquifers can be completed regardless of the results achieved in the Commission's discussion on legal questions relating to oil and natural gas. We actually perceive the shared natural resources issues as a very broad subject and are therefore of the opinion that the Commission would achieve more outputs if working on such broad subject.
According to the Czech Republic, it is necessary to found out the practice of States regarding international legal issues relating to oil and natural gas. In this respect, the Czech Republic considers of key importance a questionnaire in which individual States will be addressed to provide information on state practice regarding oil and natural gas. I would like to point out in this place that gathering such information and its subsequent assessment can take a relatively long time. This is also a reason why the Czech Republic believes that it would be useful to complete work on transboundary aquifers regardless of the progress made in the work on oil and natural gas issues.
The Czech Republic appreciates the result of the talks of the Commission held to date, namely the draft articles on the law of transboundary aquifers. We are of the opinion that this text can serve in the future as the basis for the negotiation of detailed bilateral or multilateral agreements on transboundary aquifers.
Nevertheless, the Czech Republic would like to make several comments on the draft articles on the law of transboundary aquifers, in particular on Articles 7 and 14.
Under Article 7 of the draft, aquifer States shall cooperate on the basis of sovereign equality, territorial integrity, sustainable development, mutual benefit and good faith in order to attain equitable and reasonable utilization and appropriate protection of their transboundary aquifer or aquifer system. In this context, the term good faith raises fears that States may, in good faith, take measures that were not negotiated with the other party and that could have adverse effects on the needs of the other party.
Under Article 14 of the draft, when a State has reasonable grounds for believing that a particular planned activity in its territory may affect a transboundary aquifer or aquifer system and thereby may have a significant adverse effect upon another State, it shall, as far as practicable, assess the possible effects of such activity. In our opinion, such assessment can in no way be left to only one party. In our view, all States concerned must participate in such assessment.
The Czech Republic has been considering the question of the best final form of the draft articles on the law of transboundary aquifers. It has been stressed several times during the work of the International Law Commission that the project of transboundary aquifers shows many features identical or similar to the draft articles that resulted in the adoption of the 1997 United Nations Convention on the Law on the Non-Navigational Uses of International Watercourses as well as to the 2001 draft articles on the prevention of transboundary harm from hazardous activities. It would therefore be only logical that the draft article on the law of transboundary aquifers be finalized in the form of a framework convention.
On the other hand, one can argue that the 1997 Convention on the Law on the Non-Navigational Uses of International Watercourses has not yet entered into force owing to insufficient interest of States in its ratification and express concerns that the draft articles on transboundary aquifers could have the same fate.
Yet, in this concrete case it appears that the form of a convention would have more advantages than an unbinding resolution or even a mere report of the International Law Commission. The point is that this concrete case is a case of the progressive development of international law. While the failure of a convention codifying customary rules of international law could lead to the questioning of the generally binding nature of these customary rules, there would be no such risk in considering the progressive development of law through a framework convention. Although the entry of such a convention into force may take a relatively longer time and would be binding only on a smaller number of States, a binding convention would be a more appropriate instrument of development of international law in the given area.
Thank you for your attention.