ADVANCE FEASIBILITY STUDY OF SELECTED TOPICS WOULD AVOID LAW COMMISSION CLUTTER, SIXTH COMMITTEE IS TOLD
Press Release
GA/L/3023
ADVANCE FEASIBILITY STUDY OF SELECTED TOPICS WOULD AVOID LAW COMMISSION CLUTTER, SIXTH COMMITTEE IS TOLD
19961114 Problem of Subjects 'Endlessly' on Agenda; UNHCR Representative Says Refugee Convention Does Not Provide Protection for TerroristsThe problem of unprofitable subjects remaining endlessly on the agenda of the International Law Commission (ILC), without any prospect of solution, could be solved by conducting feasibility studies before selecting the subjects, the representative of the Netherlands told the Sixth Committee (Legal), this afternoon, as it continued its consideration of the Commission's report.
As the Committee began its consideration of the chapter in the report on the programmes, procedures and working methods of the Commission, the representative of Japan suggested that a feasibility study by legal experts on environmental law would clarify issues and assist the Commission in its work on environmental law.
In a related recommendation for improving the selection of topics, the representative of Bahrain proposed that the Sixth Committee consider forming an ad hoc working group to determine the priority of subjects to be considered by the Commission at its next session.
Also this afternoon, addressing the Committee, the Director of the New York Liaison Office of the United Nations High Commissioner for Refugees (UNHCR) said he fully agreed that people resorting to terrorist acts should not be protected as refugees, and that the 1951 Refugee Convention did not provide protection to terrorists, nor did it extend any immunity from prosecution to those engaged in acts of terrorism.
Statements were also made by the representatives of Australia, Ireland, France, Austria, Brazil, Nigeria, Denmark (on behalf of Norway, Sweden, Iceland and Finland), Canada and Germany.
The Sixth Committee will meet again at 10 a.m. tomorrow, 15 November, to continue its consideration of the ILC report.
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 its review of such issues as the impact of State succession on the nationality of natural and legal persons, international liability for injurious acts not prohibited by international law, and reservations to treaties.
It was also expected to begin consideration of the final chapter of the Commission's report, which addresses the distinction between codification and the progressive development of international law and the role of special rapporteurs in its work. It also considers the Commission's working methods and its relations with the General Assembly and other bodies, both within and outside the United Nations system. (For background on the report, see Press Release GA/L/3014 of 4 November.)
In addition, the Committee was expected to hear a statement on terrorism by a representative of the United Nations High Commissioner for Refugees (UNHCR).
Statements
CATE STEAINS (Australia) said the imposition of liability on States for significant transboundary harm would provide an incentive for them to be particularly vigilant in their efforts to prevent such harm. It would be unjust to let any loss fall on a State which had no involvement in the activity that caused the damage.
Compensation for such injurious acts should be made available through specific international treaties, she said. Several liability and compensation regimes had been or were being developed to cover transboundary harm caused by specific substances. Where such regimes existed, there would be no need for any additional State compensation mechanism.
She added that reservations to human rights conventions and treaties should not be treated differently from reservations to other treaties. FRANCIS MAHON HAYES (Ireland) expressed pleasure with the Commission's work on international liability for injurious acts not prohibited by international law, which clearly set out conventional or customary international law on the matter. The Commission was strenuously urged to proceed with its work towards progressive development and codification of the law in that field. Its draft articles must be carefully examined for consistency. On the question of compensation and other relief, a misunderstanding of terminology could lead to confusion, he said. For example, if there were no
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provisions for no-fault liability, and that term did not necessarily have to be used, there would be no basis for compensation on that basis.
AHMED MAHIOU (Algeria), Chairman of International Law Commission, introduced the final chapter of that body's report entitled "Other decisions and conclusions of the Commission". He said there was continuing value in the codification and progressive development of international law. The Commission considered it impossible to draw a clear distinction between those two process and recommended that the distinction be dropped.
He said the Commission had made a number of recommendations aimed at improving the efficiency and effectiveness of its work. They included encouraging the General Assembly and other United Nations bodies to provide possible topics for codification and progressive development of international law, and streamlining and clarifying working methods of the special rapporteur. They also included using working groups more extensively, experimenting with a split session in 1998, and updating the Commission's Statute.
The Commission had identified three topics for its long-term programme of work, he said. They were the questions of diplomatic protection, ownership and protection of wrecks beyond the limits of national maritime jurisdiction, and unilateral acts of States.
He said voluntary contributions had made it possible to achieve adequate geographic distribution of participants in the recent session of the International Law Seminar, through the awarding of fellowships. That seminar had been held in conjunction with the Commission's 1996 session. The Commission attached great importance to these seminars, as they enabled young lawyers, especially from developing countries, to familiarize themselves with its work.
HUBERT LEGAL (France) said it would be totally irrational, counterproductive, costly and ineffective to divide the venue for the Commission's work. France opposed any effort to remove its work from Geneva. Governments must provide the Commission with clear instructions on the setting of priorities. The deficiencies in its working methods must be examined.
He called for a feasibility study on the environment rather than for a codification of the law of the environment. The latter would be ill-equipped. It was not clear whether issues relating to property beyond national jurisdiction fell under the Commission's purview. Such subjects as "unilateral acts of States" and "the sharing of natural resources" represented possible issues the Commission might address.
ADRIAAN BOS (Netherlands) said the Sixth Committee must set clearer priorities for the Commission's agenda, as it was the Committee's
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responsibility to indicate the political urgency of a particular subject. As to future work, their might be a need to distinguish more clearly between diplomatic protection and consular assistance given to a country's own nationals in a foreign State.
The question of the ownership and protection of wrecks lying outside national maritime jurisdictions was already covered by a number of international instruments, he said. It was not an appropriate matter for further study by the Commission. The conducting of feasibility studies before embarking on a new subject was likely to enhance effectiveness. Such initiatives might solve the problem of unprofitable subjects remaining endlessly on the Commission's agenda without any prospect of solution.
HUSAIN M. AL-BAHARNA (Bahrain) said the Commission's report called for the reports of special rapporteurs to be ready well in advance of its sessions, so members could read them carefully. However, some special rapporteurs lagged behind in presenting their reports, which in some cases were only made available during mid-session. Such delayed reports should be deferred for consideration at the Commission's subsequent session.
The Commission's report should be available to Governments much earlier than was currently the case, he said. This year's report had only been distributed at the end of September. Such a practice made it difficult for Committee members to properly study the report, which was highly technical in nature. As a result, many had found it difficult to make in-depth comments on the issues it addressed.
With respect to State jurisdiction, he recommended as possible topics for consideration by the Commission the subjects of immunity from execution, extraterritorial and territorial jurisdiction, and the territorial domain of States. As a matter of procedure, the Sixth Committee should consider forming an ad hoc working group to select topics for priority consideration by the Commission at its following session.
ERNST SUCHARIPA (Austria) said there needed to be a more cooperative relationship between the Commission and the Sixth Committee. Since 1980, not a single convention elaborated by the Commission had entered into force, a situation that threatened the its central place in the process of international law-making within the United Nations system.
A dialogue should be undertaken during the Committee's consideration of the Commission's report, in addition to the routine of having statements on every subject covered by it, he said. To foster a closer interaction between the two bodies, the respective special rapporteurs should be invited to attend the Committee's discussions on their work, to answer questions or clarify points on the texts they had prepared.
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CARLOS CALERO RODRIGUES (Brazil) said the topics to be considered by the Commission must be carefully selected. This year, it had proposed two new items for possible consideration: ownership and protection of wrecks beyond the limits of national maritime jurisdiction, and unilateral acts of States. In view of its projected workload, the Commission should have a 12-week session.
"We would set a maximum, because experience has demonstrated that no efficient work can be carried out in any sitting longer than 12 weeks", he said. A minimum should not be set because in some years, the workload might require less than 10 weeks. Brazil supported the suggestion that the Commission split its session between Geneva and New York starting in 1998. Special rapporteurs should be asked to work with consultative groups and to produce draft commentaries to accompany their articles. They should also be asked to specify the nature and scope of the work planned for the following session.
There was a need to revise the Commission's statute, he said. Adoption of such a revision might be tuned to coincide with the Commission's fiftieth anniversary in 1999. This year's resolution on the Commission's report should ask it to review the statute and present a draft to the Assembly in 1998, with the aim of adopting an updated statute in 1999.
TEIJI HAYASHI (Japan) said that improving the Commission's working methods and selection of topics would itself contribute to the progressive development and codification of international law. The relationship between the Commission and the Sixth Committee must be reviewed. The responsibility for recent shortcomings in efforts at codification must be shared by both bodies.
He said a feasibility study on environmental law by legal experts within the Commission would clarify issues relating to the development of environmental law. The conducting of that study should be given priority in the Commission's future work, along with the consideration of diplomatic protection.
ISSAC E. AYEWAH (Nigeria), referring to the draft code of crimes against the peace and security of mankind, said Nigeria preferred a more comprehensive code as an effective tool to deter such crimes. There should be a link between the draft code and the international criminal court, and the draft should be brought to the attention of the Preparatory Committee for the court. That body should make an effort to harmonize the text of the code with that of the court. On the question of State responsibility, he said the principle of countermeasures to be taken by an injured State could produce unjust results when applied between States of unequal strength or means. Acceptable conditions for the use of countermeasures must be specified. Nigeria
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supported efforts to address the effects of State succession on the nationality of natural persons, as well as the codification of principles on international liability for injurious acts not prohibited by international law.
Addressing the Commission's working methods, he said its report should be shorter and more thematic in approach. Key issues should be highlighted in order to assist in structured debate. Nigeria supported the suggestions for the holding of a 10-week session in 1997, and for a trial split session between New York and Geneva during 1998.
TYGE LEHMANN (Denmark), speaking also on behalf of Finland, Iceland, Norway and Sweden, said that in future, the Commission's work should include fewer time-consuming codification projects and more contributions to solving specific legal problems in need of immediate solution. As to future topics for consideration, he said "diplomatic protection" was a natural corollary to the work on State responsibility. Citing the brief period of time in which the Law of the Sea Convention had been in force, he said it was premature to develop international regulations on the ownership and protection of ship wrecks.
JOHN HOLMES (Canada) said some of the offenses included in the draft code of crimes had been already covered by existing instruments of international law or had been considered to form part of customary law. The provision on genocide was an example. Some of the provisions in the draft code appeared to go further than existing law. Examples of the latter were the expansion of the definition of crimes against humanity to include institutionalized racial discrimination, and the inclusion of severe and wilful damage to the environment as a crime against the peace and security of mankind. It was clear that there were still many issues on which further work was required before the draft code could be accepted by the international community. Since many provisions of the draft code would appear to go beyond existing law and much work remained to be done, if it were to be directly incorporated into the statute of an international criminal court, there could be an unduly delay.
On State responsibility, he said an important question to be settled was whether compensation was due even if the State of origin had diligently attempted to prevent transboundary harm. On the report, the Commission seemed to suggest that an important factor in the negotiations for compensation was the extent to which due diligence was exercised. The latter implied that the obligation to prevent such harm may be one of conduct and not of result, which meant that it was an obligation of due diligence to prevent damage, and not an absolute obligation to prevent it. Due diligence was not appropriate for all activities which could cause harm.
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He said the use of the phrase "due diligence" could unnecessarily entrench a standard of liability that was subject to developments in the international legal regime. Thus, he suggested to replace the phrase "due diligence" with "all appropriate measures". Canada supported the idea that in the future, the normal session of the International Law Commission (ILC) should last 10 weeks, taking account of the financial situation of the United Nations. He suggested that there should be two split sessions in 1998. REINHARD HILGER (Germany) said the work on the establishment of an international criminal court and the draft code against the peace and security of mankind indicated that there was still a need for further codification of law. He noted that there was a need for improved interaction between the ILC and the Sixth Committee, on this and other work. He said the Commission's report should be rendered more "user-friendly", utilizing word-processing technology to improve the report's layout. Questionnaires should be made more concise, and drafted in a way that allowed Member States to state their views more easily. On the role of the special rapporteur, he said that one person should continue to be responsible for a given topic and bear responsibility for the content of the report and progress of the work on the topic. A few members of the Commission should work with the special rapporteur as a consultative group. Statement for Office of High Commissioner for Refugees The Director of the New York Liaison Office of the UNHCR, Soren Jessen- Petersen, told the Committee, "We are here because of our mandate to supervise the application of the 1951 Convention as defined in Article 35 of that Convention". The High Commissioner fully agreed that people resorting to terrorist acts should not be protected as refugees. He said the UNHCR was concerned that the Refugee Convention not be portrayed as standing in the way of bringing terrorists to justice. The 1951 Convention did not provide protection to terrorists, nor did it extend any immunity from prosecution to those engaged in acts of terrorism. Explicit courses of action for States -- including expulsion and return -- were provided for in the Convention, regarding such cases. In general, terrorist acts by refugees or asylum-seekers should be prosecuted under national law of the host country. "A proper application of the Convention, coupled with enforcement at the national level, would both exclude asylum-seekers involved in terrorist acts from refugee status and avoid offering protection to those who commit or conspire with terrorist acts", he said. It was important to establish that the asylum process not serve as a shelter for terrorists, either to escape retribution or to allow them to continue their activities from a safe haven, he emphasized.
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