PRIVATE ENTITIES, NOT STATES, SHOULD BE HELD RESPONSIBLE FOR TRANSBOUNDARY HARM THEY CAUSE, UNITED STATES TELLS SIXTH COMMITTEE

13 November 1996

Press Release
GA/L/3022

PRIVATE ENTITIES, NOT STATES, SHOULD BE HELD RESPONSIBLE FOR TRANSBOUNDARY HARM THEY CAUSE, UNITED STATES TELLS SIXTH COMMITTEE

19961113 Legal Committee Continues Review of International Law Commission Report

The cost of transboundary harm caused by a private entity should be paid by the party causing the harm rather than the State from which the activity was carried out, the representative of the United States said this afternoon, as the Sixth Committee (Legal) continued its consideration of the annual report of the International Law Commission (ILC). The best way of reducing such transboundary acts was to hold the polluter itself responsible, she said.

She made that statement as the Committee continued its consideration of the Commission's treatment of international liability for injurious acts not prohibited by international law. It also continued its discussion of the impact of State succession on nationality, reservations to treaties, and the Commission's draft code of crimes against the peace and security of mankind.

On a related theme, the representative of New Zealand said it was important not to undermine the "polluter pays" principle of current environmental law. The representative of Venezuela, however, said States should be held responsible for acts from their territory which affected other States, and that the consequences of such harm should be remedied.

Statements were also made by the representatives of Ireland, Brazil, Germany, Guatemala, Czech Republic, Bahrain, Hungary, Portugal and Egypt.

Also this afternoon, the Committee decided to transmit to the Fifth Committee (Administrative and Budgetary), for its consideration, documents containing views of Sixth Committee members on proposals for reform of the internal justice system of the Secretariat, as well as on the legal affairs programme within the proposed medium-term plan for the period 1998-2001.

The Committee will meet again at 3 p.m. tomorrow, 14 November, to continue its consideration of the Commission's annual report. It is also expected to hear a statement on terrorism by a representative of the United Nations High Commissioner for Refugees (UNHCR).

Committee Work Programme

The Sixth Committee (Legal) met this afternoon to continue its consideration of the annual report of the International Law Commission (document A/51/10 and Corr.1). It was expected to continue discussing the report's chapters on State succession and its impact on the nationality of natural and legal persons, international liability for injurious acts not prohibited by international law, and reservations to treaties. (For background, see Press Release GA/L/3014 of 4 November.)

The Committee was also expected to consider legal implications of the Secretary-General's plan for reform of the internal justice system of the Secretariat. In addition, it was expected to consider the programme on legal affairs (Programme 4) of the United Nations proposed medium-plan for the period 1998-2001.

With respect to the proposed reform of the internal justice system, the Committee had before it a summary of the Committee's discussions on the subject during meetings on 30 September and 1 October (document A/C.6/51/7). At its first such meeting, the Under-Secretary-General for Administration and Management presented the Secretary-General's proposals, mentioning that there was widespread dissatisfaction with the existing system. He said the proposals were aimed at achieving a just, transparent, simple, impartial and efficient system.

During the ensuing debate, all of the speakers indicated, either expressly or by implication, their support for reform of the internal justice system, the text states. Several speakers cited positive elements of the proposals, including measures aimed at resolving problems to the litigation stage. Proposed for that purpose were such means as mediation and ombudsman procedures, improved review methods, procedures for the settlement of small claims, and professionalization of the system.

The proposal to replace the Joint Appeals Board and the Joint Disciplinary Committee drew many critical comments, although it also had support, the text states. The proposed replacement of the Joint Appeals Board with an arbitration board elicited the view that arbitration presumed equality between the parties, a feature absent from relations between the Administration and staff. Serious doubts were expressed about the idea of recruiting arbitrators from outside the Organization. Concern was also expressed that there should be adequate arrangements for legal representation of staff members. On the proposal for replacement of the Joint Disciplinary Committee by a disciplinary board, doubt was expressed about the desirability of the externally recruited arbitrators acting as chairpersons of the board, the text

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continues. Some delegations favoured a general deferral of the reform proposals for reflection and further consultation with the staff.

With respect to the programme on legal affairs in the medium-term plan, the Committee had before it a letter transmitting the views of various States on the matter (document A/C.6/51/8). Information was provided by the Governments of Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden, United Kingdom (for the European Union), Costa Rica and Cuba.

FELICITY WONG (New Zealand) drew attention to its Commission's draft article on liability for injurious acts not prohibited by international law. She said their expanded scope opened the prospect that they might be extended to include harm caused by activities which did not necessarily involve risk. With respect to environmental law, it was important not to undermine the "polluter pays" principle. There might be merit in taking a more comprehensive approach to the broader subject of environmental law. That was an important area of international law that the Commission must address if it was not to be left behind in the twenty-first century.

MAURICE BIGGAR (Ireland) drew attention to a report the Commission had been called upon to prepare on State succession, and its impact on the nationality of natural and legal persons. That must individually address the problems of nationality arising from different types of territorial changes. Although nationality was essentially governed by internal law, there were limits to the discretionary power of the State. The State's legislative competence with respect to nationality was not absolute. Nationality was a matter of direct relevance to the international order.

The Council of Europe's Commission for Democracy through Law had issued an important Declaration on the consequences of State succession for the nationality of natural persons, he said. That Declaration had emphasized the importance of democratic principles, rule of law, and the protection of human rights. It further recognized that, in cases of State succession, the interests of individuals must also be taken into account. Any deprivation, withdrawal or refusal to confer nationality must be subject to an effective remedy. The European Declaration could provide a useful guidance to the Commission in its work in that sphere.

ROGER YEPEZ MARTINEZ (Venezuela) said it was premature to select the final form which the Commission's work on State succession should take. The future instrument should address both general principles and specific situations. The right to nationality was an inherent human right. When States granted nationality, family ties should make it possible for family members to be granted nationality as well.

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He said the scope of acts covered under principles governing transboundary harm should be expanded. There were many seemingly harmless activities which could cause harm, owing to unpredictable factors. States should be held responsible for acts in its territories which affected other States, and the consequences of such harm should be remedied. The list of those injurious activities should be illustrative rather than exhaustive. Such a list would oblige States to take preventive measures.

The rules in the Commission's report on reservations to treaties were sufficiently complete, and reflected the practice of States to date, he said.

JOAO CLEMENTE BAENA SOARES (Brazil) said the forces of integration and fragmentation unleashed with the ending of the cold war had given new urgency to nationality problems which had resulting from State succession. Elaboration of an authoritative text on the matter could greatly benefit from submissions by States on problems they encountered in that area. Such a text must help ensure that the fundamental human rights of individuals were not threatened.

An attempt should be made to give Article 15 of the Universal Declaration on Human Rights, which recognized every individual's right to a nationality, a full operational meaning", he said. In addition, the text on the principle of non-discrimination must be redrafted. In an age marked by the resurgence of many forms of intolerance, it was imperative to minimize the possibility of allowing prejudice to play any role in questions of nationality related to State succession.

With respect to international liability for injurious acts, he said the victims of transboundary harm should not be left to bear the entire loss but must be compensated. The approaches envisaged in the report with respect to injured parties seeking remedies seemed adequate. However, insufficient attention was given to the manifold aspects of compensation. The nature of liability and the measures of compensation must be more specifically spelled out.

On the subject of reservations to treaties, he said there should not be a separate regime for human rights treaties. The Commission should aim at the adoption of generally applicable rules to govern such reservations, regardless of the treaty's subject.

CAROLYN L. WILLSON (United States) said the broad scope of the draft articles on environmental harm must be narrowed and the topic limited to particularly hazardous activities. Those articles were unacceptable, as they obliged States to set up an environmental impact assessment process for virtually all activities that might cause significant transboundary harm. They also implied State liability for all such harm. That went far beyond customary international law or any existing convention.

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Any list on harmful activities should be illustrative rather than exhaustive, she said. The best way to minimize transboundary harm caused by private entities acting on a State's territory was to place the costs of such harm on the person or entity causing it -- the polluter itself -- rather than on the State.

REINHARD HILGER (Germany) said there should be no fundamental change in the Vienna regimes governing reservations to treaties. However, the Commission should draft a guide for State practice on reservations in the form of draft articles, if necessary, accompanied by model clauses. To allow the so-called normative treaties to escape the application of the Vienna regime, because of their object, could jeopardize what had been achieved while failing to fill the vacuum with a valid new regime.

He said the legal regime on reservations often had two contradictory goals. One aimed at securing as many ratifications or accessions as possible. However, it also reflected an interest in safeguarding the integral nature of a convention and avoiding too much of a dilution. The Vienna regime provided for a maximum of flexibility and adaptability, thus allowing it to meet the particular requirements of all types of treaties.

When negotiating multilateral treaties, States should pay special attention to the question of admissibility of reservations, and to the consequences of reservations where admissibility was doubtful or excluded, he said. With impermissible reservations, it was always the State's exclusive responsibility to rectify the defect. The lack of a system to objectively decide on whether a reservation was compatible with the treaty's purposes left the matter in the hands of the State parties. The uncertainty of the present regime with respect to the practical consequences of inadmissible reservations was a matter which needed urgent clarification by the Commission.

ROBERTO LAVALLE VALDES (Guatemala) said the Commission's text on international liability for injurious acts not prohibited by international law was imprecise. Any activity that caused transboundary harm necessarily involved a risk. The text must be clarified to reflect that distinction.

MARTIN SMEJKAL (Czech Republic) said it was very desirable to delineate international law in the area of State succession. Questions concerning the nationality of natural persons should be separated from those affecting legal persons and given greater emphasis. The idea that States should report on problems encountered with respect to State succession and nationality was welcome. With regard to international liability for injurious acts not prohibited by international law, he said activities which did not entail risk should not be included in the draft articles.

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HUSAIN M. AL-BAHARNA (Bahrain) said that reservations to human rights treaties should be treated carefully as that topic is subject to unavoidable controversies. Nothing should be done to change the basic rules underlined by the Vienna regime on reservations. Any interpretive reservations should be clearly defined, he added.

GYORGY SZENASI (Hungary) said the Commission should continue focusing on the impact of State succession on the nationality of natural persons, leaving consideration of impact on legal persons to a later date. That matter remained a very important political and legal issue in Central and Eastern Europe, where there was a need to safeguard the rights of individuals in the wake of dramatic regional changes.

Regarding the draft articles on international liability for injurious acts, he said States should be able to carry out activities notwithstanding the possible risk of transboundary harm. However, the freedom of States in that area was not unlimited; they had an obligation to prevent or minimize the risk of causing transboundary harm. The question of compensation should be given more attention, he said. A more precise definition was needed, so the concept might not be used as a pretext to victimize neighbouring States.

PAULA ESCARAMEIA (Portugal), referring to the draft code of crimes against the peace and security of mankind, said her Government gave special importance to the protection of United Nations and associated personnel, and had, during the past couple of years, introduced draft resolutions on staff members of the United Nations and its specialized agencies in detention. Those resolutions had been adopted by consensus and the numbers of their co- sponsors were increasing.

The Commission's draft articles on State responsibility failed to specify consequences for a crime as opposed to a mere wrongful act, she said. As for countermeasures, a legal regime which would minimize the possibility of their being used was preferred. With respect to international liability for injurious acts not prohibited by international law, there should be a clearer distinction in the draft articles between situations involving strict liability and those involving responsibility.

There should only be one regime for reservations to treaties, regardless of the treaty in question, she said. Reservations which were incompatible with the purpose of a treaty should be deemed impermissible.

LAMIA MEKHEMAR (Egypt) said the use of countermeasures required the greatest caution, as well as safeguards to prevent abuse. The restriction of proportionality was too general and must be clarified. Protective measures should not be held to the same restrictions as countermeasures.

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The legal rules applying to injurious acts differed in accordance with the differing natures of the acts themselves, she said. The draft articles on that matter should take the form of a declaration of general principles, which should also set forth remedies. Responsibility for compensation must be imposed on the State rather than the individual.

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