ALL-MALE COMPOSITION OF INTERNATIONAL LAW COMMISSION MUST BE RECTIFIED, IRELAND TELLS SIXTH COMMITTEE
Press Release
GA/L/3024
ALL-MALE COMPOSITION OF INTERNATIONAL LAW COMMISSION MUST BE RECTIFIED, IRELAND TELLS SIXTH COMMITTEE
19961115 Nomination by Regional Groups Limits Membership, Israel Says; Committee Ends Consideration of Commission ReportThe traditional all-male composition of the International Law Commission was a startling reality that must be rectified, the representative of Ireland said this morning, as the Sixth Committee (Legal) concluded its consideration of that body's annual report. The Commission should also work on laws relating to environmental protection and the peaceful uses of outer space, he said.
The representative of Israel drew attention to the procedure for determining membership in the Commission, which was based on membership in a regional group. The right of every State to nominate a candidate was denied if it did not belong to such a group, a situation which applied to his own country. There must be greater representativeness on the Commission, he said.
While the topics selected for work by the Commission had been appropriate so far, it faced difficulties in selecting topics which had political implications, such as non-interference in internal affairs and self- determination, the representative of China said. She called for greater dialogue between the Commission and Member States, in order to improve the selection of topics.
In a closing statement, the representative of Algeria, as Chairman of the Commission, said its work on codification was an evolving process which involved a dialectical exchange with the Committee and governments. The views submitted by States were not only welcome but essential, at a time when the law was evolving faster than ever before.
Statements were also made by the representatives of Argentina, Viet Nam, Algeria, United States, Uruguay, Sri Lanka, Italy, Republic of Korea, Cuba, India and Mexico, as well as by the observer for Switzerland.
The Sixth Committee will meet again at 3 p.m. on Monday, 18 November, to begin its consideration of the United Nations Decade of International Law.
Committee Work Programme
The Sixth Committee (Legal) met this morning 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.
The Committee was also expected to continue consideration of the final chapter of the Commission's report, which addresses the distinction between the codification and progressive development of international law and the role of the 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.)
Statements
ENRIQUE CANDIOTI (Argentina) said the Commission's report recognized the difficulty in separating the concepts of the codification and progressive development of international law. In its future work, there should be a minimum consensus among States on topics selected, so the codification process might begin.
There was a need for better cooperation between the Commission and the Committee, he said. It might be appropriate for the Committee to shorten its formal debate on the Commission's report in order to make time for informal dialogue among delegations on problems of mutual concern.
NGUYEN DUY CHIEN (Viet Nam) said consensus was basic to the treaty- making process. There should be only one regime for reservations to treaties, regardless of the treaty in question. The permissibility of a reservation should be decided by States parties to that treaty. He opposed the proposal to shorten the Commission's annual report; the commentaries it contained were both important and useful.
NOUR-EDDINE SIDI ABED (Algeria) said it was regrettable that only five crimes had been included in the draft code of crimes against the peace and security of mankind. For example, the crime of terrorism should have been included, but had been excluded on the basis of purely political considerations. Crimes against United Nations and associated personnel should also have been included. Algeria agreed with the idea of distinguishing between crimes and delicts, owing to their different levels of gravity.
On the subject of international liability for injurious acts not prohibited by international law, he said the victims of such transboundary
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harm should receive rapid and suitable compensation. The Commission's work programme should neither be overloaded, nor directed towards unproductive ends. Neither should its work be purely academic. The Commission had the responsibility to meet current needs of nations by providing rules of law.
MAURICE BIGGAR (Ireland) said that the Commission's report did not need to be shorter and more thematic as proposed. Information and analysis should not be sacrificed to the goal of greater conciseness. However, it would be appropriate to update and consolidate the Commission's Statute by its fiftieth anniversary in 1999.
The future agenda of the Commission should include further study of the rules of law pertaining to the environmental protection and the peaceful uses of outer space, he said. As to its composition, he said it was startling that the Commission had always had an all-male membership; that situation must be rectified.
ALAN BAKER (Israel) said that according to its Statute, the Commission's membership was not to be based on political representation but was meant to reflect the main forms of civilization and principal legal systems of the world. Its members were also to possess the requisite competence in international law. However, current procedures did not permit his country, which was not a member of a regional group, to nominate a candidate for election. From the moment its election process was geared to the regional grouping system, the rights of every State to nominate its candidate was denied if the State to be nominated did not belong to a regional group. There must be greater representativeness on the Commission.
He said Israel supported the proposal that the special rapporteurs be asked to work with a consultative group of Commission members. Such a group would ensure wider substantive input, while maintaining the general direction of the specific topic as intended in the initial proposal or request of the Commission.
CAROLYN L. WILLSON (United States) said that the Commission's ideas on the role of its special rapporteurs should help to ensure that its work truly reflected the range of opinions and interests of its members. That would help its work attain broad international support. With respect to proposed topics for the Commission's future work, she said the ownership and protection of wrecks beyond the limits of national maritime jurisdiction was an obscure and narrow subject. The Commission should reconsider its intention to work on that topic which was already being addressed in other bodies.
JULIO BENITEZ SAENZ (Uruguay) said the draft code of crimes must be clarified and its list of crimes expanded. For example, the impact of nuclear arms on the environment should be included. Uruguay supported the distinction between natural and legal persons when considering the effect of State
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succession on nationality. With respect to international liability for injurious acts not prohibited by international law, technological advance made it advisable to hold the person causing the damage responsible, regardless of his original intent.
JOHN DE SARAM (Sri Lanka) said the Committee, the Commission, governments and the United Nations Office of Legal Affairs were all engaged in advancing the general multilateral legal agenda of the United Nations. That work must progress in the light of the fundamental provisions of the United Nations Charter. Its objective must always be to bring States into agreement before a convention was concluded.
The primary role of the Commission was as adviser to the Sixth Committee on what, in fact, was the law, he said. Much time was wasted when that role was not observed. The Commission should not waste time seeking consensus when it was beyond reach. There should be a speedier and more dynamic relationship between the four instrumentalities of law within the United Nations.
GAO YANPING (China) said her Government did not support the idea of merging the Commission's work on codifying international law with the work on its progressive development. Problems could arise if those two efforts were not clearly distinguished. Topics selected for the Commission to consider had been appropriate, but it faced difficulties in selecting topics which had political implications, such as non-interference in internal affairs and self- determination.
She called for strengthening the dialogue between the Commission and Member States, in order to improve the selection of topics to be considered. China supported the future consideration by the Commission of the legal effect of the unilateral acts of States, an issue that was now very pertinent and pressing.
MAURO POLITI (Italy) said there was little advantage in the proposal for the Commission to meet in a split session. Whatever advantages there might be were not sufficient to justify the additional cost to the United Nations. The extreme specificity of the proposed future topic on ownership and protection of wrecks outside national maritime jurisdiction made its inclusion in the Commission's agenda doubtful.
The Commission's report should be shorter and more thematic, he said. The special rapporteur's reports should be made available in advance of the session in which they were to be considered. More extensive use should be made of working groups.
CHOUNG IL CHEE (Republic of Korea) said it was significant that, under the Law of the Sea Convention, enforcement against a private vessel committing pollution on the high seas was to be carried out by the port State rather than
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the flag State. The Convention was thus permitting a State other than the flag State to exercise universal jurisdiction over that offence, just as piracy was punishable by all nations as a universal offence.
The draft articles on State responsibility addressed the subject of self-defence but did not define it, he said. Such a definition was important, since many acts of aggression were committed by States in the name of self- defence. It was time for the Commission to look into the matter and clearly articulate and refine the rule in a codified form.
CARIDAD YAMIRA CUETO MILIAN (Cuba) said many injurious activities not prohibited by international law could be just as harmful as those normally associated with transboundary harm. It was important that States accept responsibility for any acts on their territory that caused transboundary harm. It would be valuable for the Commission to draw up a list of harmful substances, in order to assist in the categorizing of injurious environmental acts.
She said the proposals for improving the Commission's methods of work represented an important point of departure for revitalizing and strengthening it. The Commission's advice to the Sixth Committee was indispensable. However, the mechanism for transmission of its report must be streamlined.
SHANMUGA SUNDARAM (India) said the principle of countermeasures could be abused by powerful States. One way to prevent that was the use of binding third-party settlement of disputes as a necessary precondition to initiating countermeasures. The Commission's report indicated that the injured State could take countermeasures without prior resort to such third-party settlement if initial negotiations did not work. The State against whom countermeasures were taken could then resort to binding arbitration. That approach was inadequate and imbalanced and must be corrected.
The use of terms such as "international crimes" and "wrongful acts" raised important questions, since the legality of countermeasures would depend on the nature and scope of those crimes and acts, he said. India did not support the Commission's regime on unilateral countermeasures by States. The use of unilateral measures against international crimes would not contribute to world peace but threaten it.
In its work at developing draft articles on international liability for injurious acts not prohibited by international laws, the Commission should focus on specific types of activities. That approach was better than working in the abstract or on situations which were normally dealt with under private international law. Furthermore, it was not useful to distinguish between "significant", "serious" and "substantial" harm, terms which were interchangeable in practice.
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ABRAHAM MONTES DE OCA (Mexico) said there was a need for improved dialogue between the Committee and the Commission. States must provide more guidance to the Commission, especially with respect to modifying its approach to a given topic. Earlier publication of the Commission's report would facilitate the process of dialogue.
There was no need for the Commission to consider the topic on ownership and protection of sea-wrecks as that was being addressed in other forums, he said. Mexico was waiting on the feasibility study on environmental law.
The Commission's work on the use of countermeasures highlighted the inequality between States, he said. The use of such measures was subject to a number of subjective value judgements and might aggravate rather than alleviate friction between States. They should not be used.
HEINRICH SCHELLENBERG, observer for Switzerland, said the codification of international law should continue. The crucial point with respect to the Commission's work was the choice of topics to be considered. That selection must be carried out with care, taking account of contemporary problems in international relations. The practical usefulness of the topic should also be considered. Those selected could be divided among the special rapporteurs. That would help accelerate and improve the Commission's work. The Commission could also make use of the help of intergovernmental organizations.
The frequency of questionnaires sent to States should be reduced and their content simplified, he said. It was also questionable whether the Commission needed to undertake two readings of the same draft. As to the idea of holding the meetings of the Commission in both Geneva and New York, what mattered was that members of the Commission be able to work calmly and efficiently.
AHMED MAHIOU (Algeria), Chairman of the International Law Commission, said that the process of codification basically involved a dialectical exchange between the Commission, the Committee and governments. Work on a given topic evolved, and the Commission needed the views of the Committee and of States on its work. The written comments of States were not only welcome but essential. Such contributions were crucial, as the law was evolving faster than it ever had before.
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