LIABILITY FOR INJURIOUS ACTS NOT PROHIBITED BY INTERNATIONAL LAW CONSIDERED BY SIXTH COMMITTEE
Press Release
GA/L/3020
LIABILITY FOR INJURIOUS ACTS NOT PROHIBITED BY INTERNATIONAL LAW CONSIDERED BY SIXTH COMMITTEE
19961111 Committee Continues Review of Law Commission Report; Also Discusses State Succession, Reservations to TreatiesThe question of international liability for the injurious consequences of acts not prohibited under international law was among the subjects discussed this afternoon, as the Sixth Committee (Legal) continued its consideration of the annual report of the International Law Commission.
Environmental dangers to which humanity was exposed as a result of industrial activities not prohibited by international law made it necessary to develop commonly accepted legal rules on that matter, the representative of Austria said, noting that the Commission had not yet defined significant transboundary harm.
Another aspect of the report considered today was the impact of State succession on the nationality of "natural persons" and "legal persons". The first term concerned the basic human right to a nationality, while the second referred to issues that were largely economic, involving a right which might be claimed by a corporation operating within a State in succession.
The right of an individual to a nationality within the context of State succession should be considered as basic, the representative of Bahrain told the Committee. He stressed that the aim of such a principle was to avoid statelessness. The Committee also discussed the chapter of the Commission's report concerning reservations to treaties.
The representative of Algeria, as Chairman of the Commission, introduced the relevant chapters of that body's report. Statements were also made by the representatives of France and Sweden (for the Nordic countries). Also this afternoon, the Committee concluded its consideration of the Commission's draft articles on State responsibility, hearing a statement by Libya.
The Committee will meet again at 10 a.m. tomorrow, 12 November, to continue its consideration of the Commission's report.
Committee Work Programme
The Sixth Committee (Legal) met this afternoon to continue its consideration of the annual report of the International Law Commission (documents A/51/10 and Corr.1). It was expected to conclude its consideration of the Commission's draft articles on State responsibility, and begin its review of the Commission's consideration of State succession and its impact on the nationality of natural and legal persons, international liability for injurious consequences arising out of acts not prohibited by international law, and reservations to treaties. (For background on the report, see Press Release GA/L/3014, of 4 November.)
State Responsibility
IBRAHIM ABDUL-AZIZ OMAR (Libya) said his Government opposed article 39 of the draft articles, which state that "the legal consequences of an internationally wrongful act of a State set out in the provisions of this Part are subject, as appropriate, to the provisions and procedure of the Charter of the United Nations relating to the maintenance of international peace and security". The draft was also incompatible with many aspects of international law.
With respect to countermeasures, he said they should be very limited and be used by an injured State only as a last resort. The injured State should not use force in a way not allowed by the United Nations Charter. The rights of diplomats should not be affected by such measures.
State Succession, Injurious Acts, Treaty Reservations
AHMED MAHIOU (Algeria), Chairman of the International Law Commission, introduced the chapters of that body's report dealing with State succession, liability for injurious acts, and reservations to treaties. He said the Commission recommended that the Assembly note the completion of its preliminary work on the nationality of natural persons and ask that the Commission study the question of nationality in relation to the succession of States. The question of international liability for injurious consequences had been on the Commission's agenda since 1978; a working group had been established to examine all aspects of the topic.
In essence, that topic had two elements, he said. The first concerned the prevention of certain harmful consequences outside the field of State responsibility. The second element concerned the distribution of losses arising from transboundary harm. The report addressed general principles, prevention and the question of compensation or other relief. The Commission had not had time to consider the working group's report, and so had annexed it to its report, seeking the views of the Sixth Committee and of governments.
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FRANZ CEDE (Austria) said that work on basic principles concerning nationality in relation to the succession of States was an urgent matter. Its urgency did not only stem from its political implications and the high possibility that it might prove to be a source of conflict between States, but also from its significance for individuals. Discussion of the nationality of natural persons should be separated from that of legal persons.
The final outcome of work on that subject should take the form of a non- binding declaration of the General Assembly, consisting of articles with commentaries, he said. "The declaration has its merits, since, once it is adopted by the General Assembly, its authority is equal for all States." However, its actual authority would not emanate from its form, but from its content. Rules on the effect of State succession on nationality could be formulated in a human rights context, as directly applicable within the national jurisdiction, or as rules applicable in inter-State relations which might not be invoked directly by individuals against a State.
There was a need for commonly accepted legal rules concerning the international liability for injurious consequences of acts not prohibited by international law, he said. That need stemmed from dangers and risks to which humanity was exposed as a consequence of the industrial activities not prohibited by international law. Such dangers affected the environment in the broadest sense.
The draft devoted only two articles to the codification of such international liability, he said. The first stated that significant transboundary harm caused liability and gave rise to a right to compensation or other relief. The other ordered the States concerned to negotiate on the nature and extent of compensation or other relief due. However, the draft lacked any definition of significant transboundary harm.
The legal regime governing reservations to treaties should be kept uniform, he went on to say. In cases where the permissibility of the reservation seemed to be questionable because of the vagueness of its formulation, the reserving State should enter into dialogue on the matter. Treaty-monitoring bodies must have the power to determine the permissibility of reservations to the treaties they were monitoring. That was important if it was to fulfil its monitoring function properly. For cases in which the reserving State might want to change its reservation to make it permissible, a new procedure would be needed to enable it to reformulate or even make a new reservation, even after ratification.
PHILIPPE LALLIOT (France) said the Commission's report rightly stated that it was the responsibility of each State to determine who its nationals were. The Commission should clearly distinguish between its codification of law and recommendations which constituted its progressive development. The most important contribution the Commission could make in the field would be to
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make an inventory, as complete as possible, of the practice of States in relation to nationality. The concept of "natural national" should receive priority over that of "legal national".
The definition of what constituted international liability for injurious acts, especially towards the environment, must be clarified, he said. The report did not define the characteristics of transboundary harm. The Commission's draft should be approached as a compilation of principles for use by States.
HUSAIN M. AL-BAHARNA (Bahrain) said human rights instruments had the effect of imposing new restrictions on a State's discretionary power in the field of nationality legislation. For that reason, the Commission must highlight the human rights aspect in its work. The right of an individual to a nationality within the context of State succession should be considered as basic. The aim of such a principle was to prevent statelessness.
He supported the proposal to retain the definition of certain basic concepts as contained in the 1978 Vienna Convention on Succession of States in Respect of Treaties and in the 1983 Vienna Convention on the Succession of States in Respect of State Property, Archives and Debts. The individual's right to nationality should be considered the heart of the topic under consideration. There must be non-discrimination in the granting of nationality by States.
BERTIL ROTH (Sweden), speaking also for Denmark, Finland, Iceland and Norway, said that the report's distinction between liability and State responsibility seemed unclear. The concept of international liability was stated in very general terms with no definition of the word "harm". It was also unclear whether compensation was due for remedial measures only or for irreparable harm as well, and whether it included any costs or only reasonable costs. It had long been the Nordic view that, as a minimum, compensation should be given for costs incurred.
The text did not mandate a clear duty to make legal remedies accessible to private subjects in domestic courts, he said. A provision should be added calling on States to ensure that effective recourse was available in national courts. The vague term "assessment" should be replaced with "environmental impact assessment" in the section of the report regarding State authorization of actions against those who caused environmental harm.
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