LENGTHY ELABORATION PERIOD FOR LAW COMMISSION TEXTS CRITICIZED BY SPEAKERS IN LEGAL COMMITTEE

27 October 1995

Press Release
GA/L/2874

LENGTHY ELABORATION PERIOD FOR LAW COMMISSION TEXTS CRITICIZED BY SPEAKERS IN LEGAL COMMITTEE

19951027 Canada Says Draft Code of Crimes on Agenda for 50 Years; Commission Chairman States Effectiveness Proved by Ratification, Not Speed

Even if the International Law Commission were ready to present final texts on the topics of the draft code of crimes against humanity, State responsibility and international liability, the time spent on their elaboration would be too long, the Sixth Committee (Legal) was told this morning.

As the Committee continued consideration of the report of the Commission, the representative of Canada urged the Commission to review its practices and to find ways to ensure a more expeditious treatment of subjects under its consideration. The draft code had been on the agenda of the International Law Commission for almost 50 years, and the other two items had been on the Commission's agenda for 20 and 18 years, respectively.

In his concluding remarks, the Chairman of the International Law Commission, Pemmaraju Sreenivasa Rao (India), said that the effectiveness of the work of the Commission was not demonstrated by the speed in drafting conventions and treaties, but in their subsequent adoption and ratification by States. The main objective of the Commission was to achieve international cooperation in solving international problems of economic, social or humanitarian character.

Regarding law and practice relating to reservations to treaties, most speakers agreed that it was one of the most complicated issues of modern international law. The representative of Malaysia argued that reservations to treaties enhanced the consensus process in treaty making and encouraged States to become members. The representative of Austria believed that there was a need to clarify rules of treaty law in light of current State practice. In recent years, the problem of reservations to treaties had become particularly acute, he said, especially in the field of human rights treaties. In many cases, States had raised reservations that were incompatible with the object of the treaties in question, and therefore inadmissible.

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Several speakers raised the question of whether reservations to human rights treaties should be given special treatment. The representative of Israel said that possible establishment of a special regime towards the human rights treaties would create a risk of further increasing the existing controversy.

Several speakers agreed that a feasibility study should be undertaken on the law of the environment. The representative of the Netherlands said the time had come to scrutinize the fragmentary and diversified corpus of international environmental law and develop common concepts and general principles of a global nature.

Several speakers also addressed the topic of State succession. The representative of the Czech Republic said that States should consult each other and negotiate in order to determine the effects of the succession of States on nationality and to avoid statelessness. The two successor States of the former Czechoslovakia had held a number of consultations. The two parallel national laws that came into existence had been coordinated, and a number of agreements had been negotiated to determine the questions of nationality, residence, pensions and social security.

The representatives of Nigeria, Iran, Mexico, Algeria and Italy also spoke this morning.

The Committee will resume its work at 3 p.m. today, when it is expected to conclude its debate on the report of the International Law Commission.

Committee Work Programme

The Sixth Committee (Legal) met this morning to continue consideration of the report of the International Law Commission on the work of its forty- seventh session, which was held on 2 May - 21 July (document A/50/10).

The International Law Commission was established by the General Assembly in 1947 to promote the codification and progressive development of international law in areas where customary law did not exist or had not sufficiently evolved.

The report states that during its forty-seventh session, the Commission examined State responsibility; the draft code of crimes against the peace and security of mankind; international liability for injurious consequences arising out of acts not prohibited by international law; law and practice relating to reservations to treaties; and the issue of State succession and its impact on the nationality of natural and legal persons.

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

NOOR RASHID (Malaysia) said that the four crimes referred to the drafting committee of the draft code of crimes against mankind could be considered exceptionally serious offences of international concern. While the precise meaning and scope of the crime of aggression may prove difficult to ascertain, his delegation could not subscribe to a view that it was incorrect to say that any use of force against the territorial integrity or political independence of any State could be equated with aggression.

On the question of crimes against humanity, he said they should be limited to the most serious abuses of human rights, such as those manifested in recent events in Cambodia, Bosnia and Rwanda. They should include torture and forced disappearances.

Terrorism and illicit traffic of narcotic drugs fell short of the requisite criteria for being included on the list, he continued. Should wilful and severe damage to the environment be included on the list, the environmental damage in question should be of such magnitude as to threaten the peace and security of mankind.

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On the issue of State responsibility, he said the mechanism introduced in Part I of the draft caused problems that needed to be satisfactorily addressed. That mechanism involved the General Assembly, the Security Council and the International Court of Justice. In addition, the issue of crime versus delict had not been successfully addressed. The principle of proportionality should be included in the text as the principal requirement to legitimize the taking of countermeasures.

Speaking about international liability for injurious consequences arising out of acts not prohibited by international law, he said the freedom of States to carry out activities in their territories was not unlimited. "De-sludging" activities and oil spills were among phenomena that could cause trans-boundary harm. There was a need for articles on prevention and cooperation. The article on liability and reparation was a statement of principle which needed to be elaborated on.

He noted two new items on the agenda of the International Law Commission: State succession and law, and practice relating to reservations which he said was perhaps the most difficult in the whole domain of public international law.

LYDIA CHOKRON (Israel) said there had been difficulties in drafting the draft code of crimes against mankind. The decision to limit the list of crimes to six seemed to have the support of members. Especially grave crimes threatening the peace and security of mankind should be included on the list. Decisions on crimes to be included, and their definitions, were a difficult matter; there was temptation to make political use of a legal question.

The definition should include the element allowing attribution of a crime to the individual responsible. The definition of State crime was also a difficult aspect of the law. The articles on crimes against humanity should contain the most serious war crimes committed against civilian population.

She said legal consequences of internationally illicit acts and settlement of disputes were two major points of State responsibility. The notion of State crimes in that regard was still a matter of concern; it was difficult to describe the consequences of a concept not adopted by the Commission.

Speaking about the reservations to treaties, she said it was necessary to determine whether a special regime would be established regarding the human rights treaties. Such a special regime might create a risk of further increasing the existing controversy.

ISAAC AYEWAH (Nigeria) said the special rapporteur's intention to limit the list of crimes against the peace and security of mankind to be considered

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in the second reading of the code of offences was generally acceptable, as long as it would create consensus. However, he preferred the consideration of all the articles provisionally adopted in the first reading at the Commission's forty-third session in 1991. A comprehensive code was a more effective tool for strengthening international law and the Commission should adopt generally agreed and relevant criteria for determining the crimes to be included in the code. The code should also include the offence of institutionalized racial discrimination and the hiring of mercenaries.

The draft code of crimes against the peace and security of mankind must be linked to the draft statute of the international criminal court, he continued. Also, the definition of aggression and war crimes should be improved. The institutional mechanism proposed in draft article 19 was innovative, consisting of a two-phased procedure where preliminary political assessment was made by the Security Council and/or the General Assembly, and then the International Court of Justice in order to make a decisive pronouncement on the existence or attribution of an international crime.

If the procedure succeeded, he added, it would forestall arbitrary action. At the same time, the mechanism could be easily gridlocked because the Assembly and the Council were political bodies being called upon to exercise a judicial function. The alternative proposal was more likely to succeed. That proposal would have an independent commission of jurists appointed by the Council and the Assembly. Better still, the President of the International Court of Justice could appoint an ad hoc chamber to exercise those functions.

On international liability for harmful consequences of acts that were not barred by international law, he welcomed the establishment of a working group by the Commission to consider the general issues relating to the scope, approach and possible direction on the topic. Future reports should reflect recent State practice, elaborating, among other things, the issues of dual nationality, different categories of nationals and the scope of the right to choose nationality. He was impressed by the special rapporteur's concise report on the question of law and practice relating to reservations to treaties. The view of the Commission that no reservations should be allowed in human rights treaties deserved attention, since every State has the right to make reservations.

HOWARD STRAUSS (Canada) said that in the face of the lack of consensus on the draft code of crimes against the peace and security of mankind, its ambit had effectively been reduced to four crimes, with the Commission continuing consultations on two others. Some of the crimes now included in the draft code were covered by existing multilateral conventions and were all included as offences within the draft statute of the proposed international criminal court. Inconsistencies between the statute and the draft code should

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be avoided. The contributions of the Commission should complement and support the work done in the past.

With respect to the topic of State responsibility, he shared the reservations expressed by previous speakers regarding the issue of whether States could commit crimes. He also had some concerns about the system of countermeasures, arbitration and conciliation, and the effect such a system would have on the existing system of treaties. The Commission should focus on areas where there was room for general agreement and, thus, increase the chances of producing a convention that would have broad acceptance.

Regarding international liability, he said that the difficulty of finding a broadly acceptable definition of the environment reflected the difficulty the Commission was likely to have in defining the scope of any future instruments in that area. There was obviously a need for work on specific aspects of environmental law, but working on those issues under several different headings could well lead to inconsistencies in the law, which would be a deterrent to achieving a broad base of support. A more coordinated approach to environmental issues would produce more substantive results.

Even if the Commission were ready to present final texts on the topics of the draft code of crimes, State responsibility and international liability, the time spent on their elaboration would be too long, he said. The code had been on the agenda of the International Law Commission for almost 50 years, and the other two had been on the Commission's agenda for 20 and 18 years, respectively. If existing practice continued, those subjects would continue to take up a large portion of the Commission's time for years to come. He urged the Commission to review its practices and find ways to ensure a more expeditious treatment of subjects under its consideration.

GERHARD HAFNER (Austria) said that international practice regarding State succession had proven inadequate. Recent cases of State succession in Europe had taken place in the absence of a coherent treaty framework, which had demonstrated the need for international regulation. The International Law Commission had correctly proceeded on the assumption that nationality could only be granted by national law. But certain parts of the rules of nationality clearly fell within the purview of customary international law, notably the Universal Declaration of Human Rights, according to which everyone had the right to a nationality.

He generally agreed with the Special Rapporteur that the two Vienna Conventions on the succession of States should guide the Commission. However, he disagreed with the idea that for individuals the basic criterion for possessing the nationality of the predecessor State should be birth in the territory affected by the change of sovereignty. The question should be

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whether the individual possessed the nationality of the predecessor State at the moment of succession.

Austria was not fully convinced that the nationality of legal persons should be dealt with in the same way as that of natural persons, he said. The nationality of legal persons did not constitute as salient a factor of statehood as did that of natural persons, and was not intrinsically connected with the sovereignty of States. Conventions relating to statelessness and nationality referred to natural persons, not legal persons. Legal persons could not be treated on the same footing as natural persons; it would be difficult, under international law, to find a duty to grant nationality to certain legal persons. Finally, the regime of legal persons in a case of State succession mostly depended on the continued application of the civil law of the predecessor State.

Regarding law and practice relating to reservations to treaties, he said there was a need to clarify rules of treaty law in light of current State practice. In recent years the problem of reservations to treaties had become particularly acute, especially in the field of human rights treaties. In many cases, States had raised reservations that were incompatible with the object of the treaties in question, and therefore inadmissible. The exact legal effect of inadmissible reservations to treaties had become a matter of concern for legal advisers to many governments.

The Commission seemed to be divided over the question of whether or not reservations to human rights treaties should be given special treatment, he said. Austria believed that the law of treaties should be kept uniform. Particular concerns regarding reservations to human rights treaties might be adequately addressed in clauses incorporated into those treaties. Recently, Iran had expressed a reservation to the Convention on the Rights of the Child, reserving the right not to apply any provision of the Convention incompatible with Islamic laws or with national legislation. Austria objected to the admissibility of that reservation if its application negatively affected Iran's compliance with its obligation to fulfil the object and purpose of the Convention.

MARTIN SMEJKAL (Czech Republic) said the succession of States and nationality of natural and legal persons was a complex issue. Czech legislation on the topic of succession had been provided to the Commission, as part of the examination of existing legislation on the issue. The question of nationality of legal persons was different from that of nationality of natural persons. The urgency of considering the question of nationality applied only to natural persons. Some primary principles had been revealed during discussions in the International Law Commission. For example, it had been agreed that the question of nationality should be addressed primarily in the domain of national law.

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There should be no disadvantages and discrimination in respect of nationality on the basis of religion, culture or ethnicity, he said. The preliminary conclusions of the working group showed that the obligation to avoid statelessness was recognized as one of the major issues under the topic. States should consult each other and negotiate in order to determine the effects of the succession of States on nationality. With respect to the precise modalities to prevent statelessness, the Commission was headed towards the sensible solution of allowing States to preserve the basic previously established principles. The systems contained in the report should be considered as guidelines for States in cases of succession.

The successor States of the former Czechoslovakia had consulted to set the criteria for questions of nationality, he said. Two parallel national laws that came into existence were coordinated, and a number of agreements had been negotiated to determine the questions of nationality, residence, pensions and social security. Regarding reservations to treaties, he said that basic guidelines had been determined by the Commission. The proposal to adopt guidelines and model clauses on the subject of reservations seemed plausible. However, the regime of reservations to human rights treaties should be approached with caution, for different regimes in regard to different kinds of treaties would weaken international law.

In conclusion, he expressed concern over the present state of stagnation in the codification and progressive development of international law. The codification of new branches of international law demanded general acceptability and consensus, which were hard to achieve. The inclusion of three new items, including international liability and diplomatic protection, in the programme of work of the Commission signified significant developments in international law.

SEYED HOSSEIN ENAYAT (Iran) said the impact of State succession on nationality had been one of the most important issues concerning such succession left for consideration after the adoption of the 1978 and 1983 Vienna Conventions. The importance of the subject was not only due to recent political changes in Europe and elsewhere, but also to the human and legal dimensions of the topic. Codification or international legislation on the topic of nationality was urgently needed. It was undesirable that, as a result of a change of sovereignty, persons should be rendered stateless against their will. It was also undesirable that persons who had only an accidental relationship with a successor State should be invested with a nationality they did not want.

The working group's report provided a sound basis for further work on the topic, he continued. However, it should have focused first on identifying the issues and studied the existing rules of positive international law. Moreover, a comprehensive study of national legislation and State practice was

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needed, because nationality involved economic, social, cultural and political issues. He favoured the flexible approach of the working group's efforts on codification and progressive development of international law.

Nationality, he continued, was governed by domestic law and positive international law had recognized that exclusive competence. While some recent jurisprudence had underscored that point, the Commission believed that international law imposed some restrictions on State freedom of action. It was that limited role of international law in the context of State succession that would be the focus of the Commission's work. In that regard, the special rapporteur had pointed out two limitations on State freedoms in the area of nationality, which were the principle of effective nationality and the protection of human rights. The duty not to pass arbitrary laws should be regarded as another, he said.

SOCORRO FLORES (Mexico) said the sensitive nature of the issues before the Committee justified the caution with which they were being handled. The concept of environmental damage should be included in the draft on international liability for harmful consequences of acts that were not barred by international law. However, the lack of a uniform definition of environmental damage had led to some ambiguity. There were two aspects to the issue, prevention and reparation. Harm was a precondition for reparation by States, as without harm there could be no duty to pay compensation. The obligation of States in the sphere of prevention were a part of international law and the consequences for non-compliance had not been clarified. Failure to fulfil the duties of prevention should have consequences.

Regarding the law and practice regarding treaties, he said the regime of reservations as contained in the Vienna Conventions had been working. The work to be done now was to complement the existing system. Reservations should be dealt with comprehensively and with no special categories, although it was premature to take a decision on a definite modality for working on the question of reservations. The issue of diplomatic protection should be studied in order to complete the existing framework on that subject. Mexico would also support a comprehensive analysis on environmental issues.

TEUNIS HALFF (Netherlands) welcomed the beginning of work on the topic of reservations to treaties and largely agreed with the identification of the main legal questions on the topic. Recent practice in the field of human rights law had indicated that existing law was inadequate and its application left much to be desired. The problems with respect to reservations were not necessarily restricted to human rights law, as similar issues arose in many other areas.

The issue of State succession with respect to reservations need not have high priority in the work of the Commission, he continued. As existing

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written rules provided clear-cut answers to questions arising in case of a newly independent State, he suggested that in contemporary practice those rules also be applied to other cases of State succession. There was an urgent need to clarify many of the legal questions raised by the special rapporteur in his preliminary report. With the increasing number of treaties and reservations, solutions should be suitable for the use under differing circumstances.

He said that a feasibility study was needed on environmental law. It was not only conservation and protection that had been on the international agenda. Other issues, such as responsibility and liability for harm caused to the environment, had increasingly become the subject of international agreements and negotiations. The time had come to scrutinize the fragmentary and diversified corpus of international environmental law. Such scrutiny should develop common concepts and general principles of a global nature, which would provide an adequate foundation for the future development of environmental law.

Consideration should also be given to the law on cooperation, avoidance and settlement of disputes, he said. He supported the development by the Commission of a set of draft articles laying down common concepts and general principles of international environmental law, provided such a task could be achieved within a reasonably short period of time.

NOUR-EDDINE SIDI ABED (Algeria) said nationality was closely linked to internal law through the constitution and jurisprudence of a country. It was a matter of State sovereignty, but the general rules of international law should also be considered when dealing with State succession. The Commission should consider existing instruments on the matter.

Speaking about reservations to treaties, he said it was a complicated field of international law. The work of the International Law Commission was directed at filling the gaps existing in treaties. He did not believe that work on the reservations to treaties was not urgent in nature. Existing conventions provided a legal context that had already demonstrated its effectiveness. The Commission must take into account the need for uniformity of international treaties.

MAURO POLITI (Italy) said he favoured the inclusion of aggression in the draft code, adding that it should be subjected to the jurisdiction of the future international criminal court. He appreciated the fact that the special rapporteur's report contained a general definition of aggression. However, that definition should be accompanied by an enumeration of specific acts that were relevant to criminal law. A proper balance should be found between the independence of the judiciary body entrusted with prosecuting and punishing

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aggression and the Security Council's primary responsibility in maintaining international peace and security. That point required further reflection.

He shared the approach on the definition of genocide as contained in draft article 19, which was based on the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. He welcomed the new title and contents of article 21 on crimes against humanity and he favoured referring those crimes to acts committed in armed conflicts and in times of peace, either by individuals acting as agents of a State or by persons who had acted in individual capacities. Moreover, article 22, on war crimes, conformed with established international practice, although there were questions that should be considered further, including the extension of the notion of war crimes to non-international armed conflicts.

He agreed with the Commission's decision to set up a working group to examine the possibility of covering in the draft code the issue of wilful and severe damage to the environment. Developments in recent international practice might be sufficient to justify the insertion of that type of crime in the code. The provision of penalties in the code should be consistent with corresponding provisions in the Statute of the International Court of Justice. One possibility would be to set the minimum and maximum limits for each crime in the Code according to the crime's seriousness and have a national judge or the international criminal court exercise discretion within those limits. As an alternative, applicable penalties could be established by referring to the national law of the State in which the crime had been committed. The death penalty, however, must be excluded.

The Commission should deal separately with the nationality of natural and legal persons, he said. The problem of nationality arising in different types of territorial change should be addressed on case-by-case bases. Also, the Commission should devote special attention to the issue of reservations to human rights conventions. There was an urgent need to fill the gaps in the Vienna Conventions. States might find useful the drafting of model clauses to be included in human rights conventions.

PEMMARAJU SREENIVASA RAO (India), Chairman of the International Law Commission, in his concluding remarks on the report of the Commission, said that constructive ideas and comments made in the Committee would be thoroughly studied by the Commission. He expressed the hope that the second reading of the draft code of crimes would be completed next year and greater clarity would be brought to the scope of the topic of State responsibility. Sufficient priority needed to be given to other matters as well, to make rapid progress.

A theme addressed in several statements was the role and effectiveness of the Commission in codifying and progressively developing international law,

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he continued. The effectiveness of the drafting of conventions and treaties was demonstrated not in the speed of work, but in the subsequent adoption and ratification by States. The broadest possible number of States should be given the opportunity to participate in the work of the Commission.

The main objective of the Commission was to achieve international cooperation in solving international problems of economic, social or humanitarian character, he said. The ultimate aim of the Commission was to promote development and identification of the principles of international law universally accepted by the peoples represented by the United Nations. Such a task was understandably time consuming.

By submitting its reports every year and working in accordance with its mandates set by the General Assembly, the Commission was fulfilling the will of the United Nations. He did not think it was the intention of any representatives to interfere with the work of the Commission. The dialogue in the Committee was useful, and the comments made in the debate would be carefully summarized and used by the Commission in its further work. The working methods of the Commission were also a matter of continuous consideration in the Commission itself.

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