At its fifty-second session, in 2000, the Commission, on the basis of the recommendation of a Working Group on the long-term programme of work, concluded that the topic “Shared natural resources of States” was appropriate for inclusion in its long-term programme of work. [1]

The General Assembly, in resolution 55/152 of 12 December 2000 (E, F, S, R, C, A), took note of the Commission’s report concerning its long-term programme of work. In resolution 56/82 of 12 December 2001 (E, F, S, R, C, A), the Assembly requested the Commission to further consider the topic having due regard to comments made by Governments.

Extracts from The Work of the International Law Commission, 6th ed., vol. 1

At its fifty-fourth session, in 2002, the International Law Commission decided to include the topic “Shared natural resources” in its programme of work, to appoint Chusei Yamada as Special Rapporteur for the topic, and to establish a Working Group to assist the Special Rapporteur. [2]

The General Assembly, in resolution 57/21 of 19 November 2002 (E, F, S, R, C, A), took note of the Commission’s decision to include the topic in its programme of work.

At its fifty-fifth session, in 2003, the Commission had before it the first preliminary report [3]  of the Special Rapporteur which provided the background on the topic and proposed to limit its scope to the study of confined transboundary groundwaters, oil and gas, with work proceeding initially on the study of confined transboundary groundwaters. The Special Rapporteur also submitted an addendum to the report which was technical in nature and sought to provide a better understanding of what constituted confined transboundary groundwaters. The Special Rapporteur noted that the problem of shared natural resources had first been dealt with by the Commission during its codification of the law of the non-navigational uses of international watercourses. At the time, the Commission had decided to exclude confined groundwaters unrelated to surface waters from the topic, but nonetheless considered that a separate study was warranted due to the importance of confined groundwaters in many parts of the world. The Special Rapporteur deemed it indispensable to know exactly what such groundwaters were in order to ascertain the extent to which the principles embodied in the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses could be applicable. The Special Rapporteur noted that the international efforts to manage groundwaters were taking place in different forums, that the law relating to groundwaters was more akin to that governing the exploitation of oil and gas, and that the Commission’s work on the topic of international liability, particularly regarding the prevention aspect, would be relevant. [4]

The Commission considered the report without taking any decision with respect to the scope of the topic or the future course of work. The Commission also had an informal briefing by experts on groundwaters from the Food and Agriculture Organization and the International Association of Hydrogeologists. [5]

The General Assembly in resolution 58/77 of 9 December 2003 (E, F, S, R, C, A) invited Governments to provide information to the International Law Commission regarding national legislation, bilateral and other agreements and arrangements with regard to the use and management of transboundary groundwaters, in particular those governing quality and quantity of such waters, relevant to the topic.

At its fifty-sixth session, in 2004, the Commission had before it the second report [6] of the Special Rapporteur which proceeded on the basis of the proposal of the Special Rapporteur, made at the previous year's session, that he first focus on the question of groundwaters. His report provided a general framework for a set of draft articles on transboundary groundwaters, and proposed seven draft articles, divided into two Parts, namely Part I entitled "Introduction" (including two articles on scope and use of terms, respectively) and Part II entitled "General principles" (containing 5 draft articles on Principles governing uses of aquifer systems, the obligation not to cause harm, general obligation to cooperate, regular exchange of data and information and relationship between different kinds of uses). The report included an addendum providing some technical and factual data on transboundary groundwaters, as well as aquifer models, case studies on selected regional aquifers
and a selected bibliography. [7] The Commission established an open-ended Working Group on Transboundary Groundwaters, chaired by the Special Rapporteur. The Commission also had two informal briefings by experts on groundwaters from the Economic Commission for Europe (ECE), the United Nations Educational, Scientific and Cultural Organization (UNESCO), the Food and Agriculture Organization (FAO) and the International Association of Hydrogeologists (IAH). At the request of the Special Rapporteur, the Commission agreed that a questionnaire, prepared by the Special Rapporteur, be circulated to Governments and relevant intergovernmental organizations asking for their views and information regarding groundwaters. [8]

The General Assembly in resolution 59/41 of 2 December 2004 (E, F, S, R, C, A) drew the attention of Governments to the importance for the International Law Commission of having their views on the various aspects involved in the topic, in particular on their practice, bilateral or regional, relating to the allocation of groundwaters from transboundary aquifer systems and the management of non-renewable transboundary aquifer systems relating to the topic.

At its fifty-seventh session, in 2005, the Commission had before it the third report [9] of the Special Rapporteur as well as comments and observations received from 20 Governments and 3 relevant intergovernmental organizations. [10] In his third report, the Special Rapporteur proposed a complete set of 25 draft articles containing the followng six parts: Part I entitled "Introduction" (articles 1 to 4 on scope, use of terms, bilateral and regional arrangements, relation to other conventions and international agreements, respectively), Part II entitled "General principles" (articles 5 to 11 on equitable and reasonable utilization, factors relevant to equitable and reasonable utilization, obligation not to cause harm, general obligation to cooperate, regular exchange of data and information, monitoring and relationship between different kinds of utilization, respectively), Part III entitled "Protection, preservation and management" (articles 12 to 15 on protection and preservation of ecosystems, protection of recharge and discharge zones, prevention, reduction and control of pollution, and management, respectively), Part IV entitled "Activities affecting other States" (articles 16 and 17 on assessment of potential effects of activities and planned activities, respectively), Part V entitled "Miscellaneous provisions" (articles 18 to 21 on scientific and technical assistance to developing States, emergency situations, protection in time of armed conflict, and data and information vital to national defence or security, respectively) and Part VI entitled "Final clauses" (articles 22 to 25 on signature, ratification, acceptance, approval or accession, entry into force and authentic texts, respectively). The report included an addendum setting out provisions of legal instruments relevant to some of the draft articles proposed by the Special Rapporteur.

The Commission considered the Special Rapporteur's report [11] and established a Working Group. [12] The Group reviewed and revised eight draft articles. The Commission subsequently took note of the report of the Working Group [13] as well as of its proposal that it be reconvened at the 2006 session in order that it may complete its work. The Commission also had an informal technical presentation on the Guarani Aquifer System Project on 4 May 2005. [14]

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