LEGAL COMMITTEE DISCUSSES STATE SUCCESSION AND RESERVATIONS TO TREATIES
Press Release
GA/L/2872
LEGAL COMMITTEE DISCUSSES STATE SUCCESSION AND RESERVATIONS TO TREATIES
19951025 The International Law Commission should endeavour to clarify the gaps to be found in the Vienna Conventions dealing with the law of treaties, the Sixth Committee (Legal) was told this afternoon.As the Committee began its discussion of law and practice relating to reservations to treaties and State succession and its impact on the nationality of natural and legal persons, the representative of Brazil said that while nationality was governed essentially by internal law, it was also of concern to the international order. The succession of States might create large-scale statelessness, depriving individuals of a right proclaimed in the Universal Declaration of Human Rights.
On the issue of State responsibility, the representative of Uruguay said that defining countermeasures in the draft articles would be incompatible with modern international law, for they themselves were unlawful.
Egypt questioned the need to advance the controversial concept of State responsibility for crimes and said the best way to achieve the deterrence factor was by attributing criminal responsibility to the individuals responsible for the commitment of a wrongful act by the offending State.
Also this afternoon, Sixth Committee Chairman Tyge Lehmann (Denmark) informed the Committee that Judge Andres Aguilar Mawdsley, member of the International Court of Justice, had died in The Hague. The Committee observed a moment of silence.
Also speaking this afternoon were the representatives of the Slovak Republic, Jordan, Bahrain, Mexico and Guatemala.
The Sixth Committee will meet again at 10 a.m. tomorrow, 26 October, to continue discussing the report of the International Law Commission.
Committee Work Programme
The Sixth Committee (Legal) met this afternoon to continue consideration of the report of the International Law Commission (document A/50/10). This afternoon, it was expected to begin consideration of the chapters on State succession and reservations to treaties.
The report states that during its forty seventh session, which was held from 2 May to 21 July, the issue of reservations to Treaties was discussed with a view to facilitating accession to multilateral treaties of general interest. The Commission noted that it would be advantageous to fill gaps in the existing texts and, as far as possible, do away with their ambiguities.
The Commission, for the first time, also undertook work on law and practice relating to State succession and its impact on the nationality of natural and legal persons, based on reports of its special rapporteurs on those topics. It based its discussions on the fundamental premises that, in situations resulting from State succession, every person whose nationality might be affected by the change in the international status of the territory had the right to a nationality and that States had the obligation to prevent statelessness.
The annex to the document contains a report of the working group on State succession. The working group considered statelessness to be the most serious potential consequence of State succession and recommended that States address the following potential effects of succession during the negotiation process: dual nationality; the problem of the separation of families as a result of the attribution of different nationalities to their members; and other issues, such as military obligations, pensions and other social security benefits and the right of residence.
Also before the Committee, was the note by the Secretary-General (A/50/402), containing the draft articles adopted by the Commission on the issues of State responsibility and international liability for injurious consequences arising out of acts not prohibited by international law.
(For background information, see press release GA/L/2863 of 12 October.)
Statements
JAN VARSO (Slovak Republic) said he had doubts about the whole concept of international liability. The draft articles revolved around actions by States which were perfectly legal, but which had unintended harmful consequences. Would the good or bad faith of the legal person undertaking the activity be brought to bear? A balance must be drawn between a State's right to take an action, and its obligation not to infringe the rights of others.
Sixth Committee - 3 - Press Release GA/L/2872 21st Meeting (PM) 25 October 1995
Experience showed that if the balance between rights and duties of the subjects concerned was not observed, the legal order would be jeopardized. A more in-depth analysis must be made on the whole topic of international liability for the injurious consequences arising out of activities not prohibited by international law. It must be addressed together with the responsibilities of States in general.
Slovakia believed that the articles should be very clear as to what they wished to regulate, he said. They should be seeking to protect nature by codifying certain rules of governance. Human activities which interfered with nature could be divided into two categories: intended activities, such as flood management on a river, the consequences of which would not upset international relations because they were agreed-upon; and activities intended to exploit nature, such as the transportation of materials or the generation of nuclear power, which caused certain risks. The pragmatic way to deal with them was to cooperate internationally to prevent harm or minimizing it in case of accident.
AWN AL-KHASAWNEH (Jordan), speaking on the topic of State responsibility, said the concept of proportionality in the application of countermeasures might prove a "false friend" in the sense that it created an impression of limitation on the right of States to employ countermeasures. In reality, it would be difficult to say whether or not a State employing countermeasures had done so excessively. Modern international relations were so complex and interwoven that a breach in one area might trigger a countermeasure in an area totally removed from the first one. An allegation of a breach in the field of human rights, for example, might trigger a countermeasure in the field of trade. Countermeasures should be expressly prohibited when they had adverse effects on third States.
Jordan welcomed the seven articles dealing with the settlement of disputes, he said. However, a less rigorous regime for situations in which countermeasures had not been applied was an invitation to injured States to resort to countermeasures in order to better avail themselves of the dispute settlement procedure. Countermeasures were a form of self-help inimical to the development of international law. A third party should be brought in before the application of countermeasures, to decide whether there were reasons for their application and whether the countermeasures contemplated were within the law.
Regarding international liability, he said that the whole question had metamorphosed into an environmental topic. That change had been misconceived. Environmental protection was best achieved at the preventive level and had nothing to do with the payment of compensation for harm. The topic was based on the principle that innocent victims should not bear losses alone, and on the pragmatic consideration that such payment was the price for the continuation of lawful and beneficial activities which had injurious consequences.
Sixth Committee - 4 - Press Release GA/L/2872 21st Meeting (PM) 25 October 1995
As man's ability to do what he would with nature was restricted by the competing freedom of others, the boundaries of prohibition were continuously shifting in the direction of prohibition, he said. Confining liability to transboundary harm carried connotations of environmental protection which were restrictive of the topic's scope.
MARIA DEL LUJAN FLORES (Uruguay) said there were divergent opinions regarding the relevance of differentiating between crimes and delicts in international law. She supported such a distinction and said that the crimes and obligations under international law concerned all States. Obligations derived from the acts of aggression, genocide and crimes against human rights.
Crimes threatened the very foundation of international community, she continued. The concept of crime required greater precision in formulation, taking into consideration the gravity of violations. Application of the notion of crime to States was dictated by the reality of breaches of international law by States.
A more careful review of the item of restitution in kind was needed, and the notion of "vital needs of the population" should be spelled out. Definition of countermeasures in the draft would be incompatible with modern international law, for they themselves were unlawful.
A more precise distinction should be made between the powers of injured States and other States, she continued. The articles in the draft relating to the settlement of disputes call for mandatory recourse to arbitration, including the right to institute arbitral procedures unilaterally. The causes that would allow an award to be challenged should also be specified in the draft.
Regarding international liability, she said damage was defined as a precondition for any compensation and as a measure for reparations. The concept of transboundary harm was the key element to be addressed. If the rights of another State were injured, the acts were unlawful. Transboundary harm could affect the lives, health and well-being of a country's population. In many cases, those injuries constituted exporting costs, which was prohibited by international law. The damage caused should be repaired.
Environmental damage could not be disregarded and should be viewed as one of the manifestations of transboundary harm, she continued. Through reparation, the consequences of an unlawful act would be eliminated. The most appropriate remedy for damage to the environment would be total restoration of that environment. However, greater precision was needed to define the damage. Individuals, as well as States should be able to make claims in cases of transboundary harm, and provisions should be included to that effect.
Sixth Committee - 5 - Press Release GA/L/2872 21st Meeting (PM) 25 October 1995
NABIL ELARABY (Egypt) said the draft code of crimes must focus only on the serious international offenses. The criteria for determining crimes could include the political character of the crime and the possibility that the offence would endanger or disturb international peace and security.
The crimes of wilful and severe damage to the environment, illicit trafficking of drugs and the threat of aggression should be retained in the list of crimes in the draft code due to their relevance, he continued. The definition of intervention was imprecise and could entail difficulties when applied, particularly with respect to the evidence. Also, the new concept of exceptionally serious war crimes remained vague and may need further elaboration. The article on international terrorism should be retained in the draft code due to the increased frequency of terrorist acts.
He said the concept of State responsibility for crimes was not favoured by many States. The application of that concept could result in the punishment of an entire people, which would be unfair. It must be recognized that certain precedents could be pointed out and perhaps, a new norm was emerging.
Positive ideas regarding the role of the General Assembly and the Security Council in examining alleged acts of international crimes needed to be further explored, he said. The draft was encroaching on sovereign rights of the State by imposing compulsory jurisdiction of the International Court of Justice without prior consent. The need to advance the controversial concept of State responsibility for crimes was questionable. The best way to achieve the deterrence factor was by attributing criminal responsibility to the individuals responsible for the act by the offending State.
Speaking about international liability for non-prohibited acts, he noted the different types of liability incorporated in the relevant conventions. He supported the principle of joint liability between the State and the operator. If the operator failed to compensate the injured State or provide partial remedy, the injuring State would be liable for the rest of the compensation.
HUSAIN M. AL-BAHARNA (Bahrain) said that the notions of prevention, the role of harm and transboundary harm were at the centre of the discussion relating to international liability. Regarding reparation of harm to the environment, he said that environmental degradation constituted harm and that environment belonged as much to States as to others interested in its preservation.
Speaking about State responsibility, he said that no State should be subjected to measures that jeopardized its political independence and the vital needs of its people and its territorial integrity. The issue of the role of international institutions in determining legal consequence of international crimes of States was complex. Theoretically, international
Sixth Committee - 6 - Press Release GA/L/2872 21st Meeting (PM) 25 October 1995
institutions, as presently organized, were not endowed with power like the States for taking redressive action, he continued. States, which normally initiated action through international institutions, had different interests to safeguard. The most practical course of action would be to have a recourse to existing institutional machinery in a guarded manner.
The most crucial problem to be addressed by the Commission was the question of determining the existence of an internationally wrongful act and its attribution to the State, he continued. Presentation by an injured State of a demand for cessation of the wrongful act constituting an international crime should not be dependent upon a prior determination by the International Court of Justice.
He subscribed to the provision that the Security Council, the General Assembly and the International Court of Justice, should act together in taking any decision concerning the existence or attribution of a crime, each bringing into play the role that matched its own characteristics.
The proposed mechanism for settlement of disputes represented a bold step in the process of progressive development of international law, he said. It made recourse to conciliation compulsory on the parties to the dispute. The mechanism for compulsory settlement of disputes had been criticized by some members of the Commission; he expressed support with the group of members who thought that the criticism against the mechanisms was groundless.
SOCORRO FLORES (Mexico) said the subject of State responsibility was one of the cornerstones of international law and order. The international community could no longer delay dealing with that issue. The approach of the Commission to some principles of State responsibility was a cause for concern, including the questions of countermeasures, so-called international crimes and mechanisms of settlement of disputes.
The articles on countermeasures seemed interesting from the theoretical point of view, but their introduction should be delayed because it would be used only by States with sufficient capacity.
Settlement of disputes should be included in the draft, but the mechanisms should be effective, she said. Overly heavy burden should not be imposed on States. The legal framework of State responsibility should evolve around the existence of international crime, ascribing of a wrongful act to a State, and its consequences.
FRANCISCO VILLAGRAN KRAMER (Guatemala) speaking about international liability, said modern industry was becoming very bold, and risk capital was becoming a presence around the world. Transboundary harm had effects of enormous magnitude. The developed countries were already taking measures against that. The Commission had worked out parameters of its work on the
Sixth Committee - 7 - Press Release GA/L/2872 21st Meeting (PM) 25 October 1995
topic. It was also taking into consideration the existing conventions on the issue of transboundary harm and international liability. The use of existing instruments inspired confidence.
The State certainly could be a party to causing damage, he continued. Other parties to damage could be State and private operators. The parameter set in dealing with damage was its significance. Definition of harm had been provided by the special rapporteur. The notions of prevention, countermeasures and remedies should be further addressed. The Commission should provide better guidance on the matters of guilt and responsibility.
The operator in many cases was a private operator, and the proposed financial machinery for managing reparations was very appropriate, he said. Where the damage was not covered by financial institutions, including insurance companies, the State would come in. Dual State-operator responsibility opened many doors and solved many problems.
Substantial transboundary harm would give rise to reparations, he continued. All damage should be repaired. That fundamental principle of international law should be embodied in the draft convention. The Commission had also prepared a whole chapter on procedures, which raised hope that the work on the draft would be completed soon.
CARLOS CALERO RODRIGUES (Brazil) said the Commission should endeavour to clarify the gaps to be found in the three Vienna Conventions dealing with the law of treaties. The final form that its deliberations might take should be subject to the approval of the General Assembly.
Regarding State succession, he said that nationality was governed essentially by internal law, but it was also of concern to the international order. The succession of States might create large scale statelessness, depriving individuals of a right proclaimed in the Universal Declaration of Human Rights. The intervention of international law might be fully justified in such a situation. The Commission reached consensus on the obligation of States involved in succession to negotiate the question of nationality. He wondered whether that simple obligation was sufficient to ensure that the problems relating to nationality resulting from a succession of States would actually be resolved.
Addressing the future work of the Commission, he said that he was not convinced that multilateral conventions should cease being the primary instruments of codification in favour of "soft codification" instruments such as General Assembly resolutions, declarations or restatements of customary international law. "Soft law" seemed a contradiction in terms, like "bitter sugar" or "static motion". What distinguished the norms of law from any other
Sixth Committee - 8 - Press Release GA/L/2872 21st Meeting (PM) 25 October 1995
laws was their constraining nature -- the fact that they created "hard" obligations. Other options, such as making wider use of reservations and "opting out" procedures, would also result in the weakening of international law at a time when the international community should be attempting to strengthen it.
* *** *