REPORT OF INTERNATIONAL LAW COMMISSION INTRODUCED IN LEGAL COMMITTEE

Press Release
GA/L/3049

REPORT OF INTERNATIONAL LAW COMMISSION INTRODUCED IN LEGAL COMMITTEE

Speaking "clearly and with brutal frankness" this morning, the Chairman of the International Law Commission said the Sixth Committee (Legal) did not always properly discharge its role of guidance and leadership for the Commission.

Introducing the Commission's report to the Committee, Alain Pellet, the Commission's Chairman, said that too often the Committee's criticism did not lead "to clear or constructive guidelines, so that the Commission, left to itself, is reduced to trying to decipher the often contradictory and sometimes confusing 'signals' sent to it".

The two bodies should improve their indispensable dialogue, he said. The Commission would meet expectations even more effectively, if it was given timely guidelines throughout the course of its work. While the Commission had nothing to be ashamed of in its record of 50 years, it seemed to its members that the time had come for adaptations and reforms that might enhance its effectiveness.

Earlier, the Chairman of the Sixth Committee, Peter Tomka (Slovakia), paid tribute to the exceptional contribution of the Commission to the development and codification of international law. As he outlined the schedule of work for considering the Commission's report, he said the report always gave rise to an extremely interesting and useful exchange of views in the Committee and the current year would be no exception.

The representative of Austria made several suggestions to make the Committee's work more efficient. First, it should encourage delegations to be concise in their statements, leaving to a written memorandum the details of the legal points. Also, whenever a topic was being debated which directly involved a particular expert member of the Commission, that member should be present.

The Committee will meet at 10 a.m. Tuesday, 28 October, for the start of the two-day Colloquium on the Codification and Progressive Development of International Law, commemorating the fiftieth anniversary of the International Law Commission.

Committee Work Programme

The Sixth Committee (Legal) met this morning to begin consideration of the report of the International Law Commission on the work of its forty-ninth session (document A/52/10). The Commission, which met in Geneva from 12 May to 18 July, adopted a set of 27 draft articles and a draft preamble with commentaries on the nationality of natural persons in relation to the succession of States. The Commission also considered issues related to reservations to treaties, including human rights treaties; examined the scope and content of the topic of diplomatic protection, as well as of unilateral acts of States; continued consideration of the question of responsibility of States for internationally wrongful acts; and of international liability for injurious consequences arising out of acts not prohibited by international law.

For its consideration of the draft articles, the Commission had before it the Special Rapporteur's third report on the subject of nationality in relation to succession of States. The 27 draft articles on the topic are divided into two parts: general principles applicable to all cases of succession of States; and principles applicable in specific situations of succession of States. The report of the Commission contains both, articles and attached commentaries.

The question of the succession of States' impact on nationality was included in the Commission's agenda in 1993 against the backdrop of a number of cases of State succession. The Commission decided in 1996 to give priority to the question of the nationality of natural persons, or individuals, which involved human rights considerations. It left aside for the moment the question of nationality of legal persons -- such as corporations -- which, the Commission considered, raised issues largely economic in nature.

According to the report, the draft set of articles are based on the fundamental principle that every individual who, on the date of the succession of States, had the nationality of the predecessor State, has the right to the nationality of at least one of the States involved in the succession (article 1). States thus have the obligation to take all appropriate measures to prevent such persons from becoming stateless as a result of the succession (article 3). A general presumption exists that persons who had the nationality of the predecessor State and who reside in the territory affected by the succession, acquire the nationality of the successor State on the date of such succession, but there are exceptions (article 4). Special emphasis was given to the will of individuals whenever they are qualified to acquire the nationality of more than one State involved in the succession. In such cases, they were to be granted a right of option (article 10).

The fundamental concern of the Commission is the protection of the human rights of persons whose nationality may be affected following State succession (preamble), the report goes on. As a matter of principle, the Commission

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concluded that it was important to safeguard basic rights and fundamental freedoms of all persons whose nationality may be affected following the replacement of one State by another, irrespective of the place of their habitual residence. Under no circumstances should a person be denied the right to acquire at least one nationality of the States involved in the succession. The State that should grant its nationality depends on the type of succession and the nature of the links that person had with the States in question.

Other issues addressed in part I of the draft articles concern: the enactment of legislation on nationality and connected questions (article 5); the effective date of attribution of nationality following the succession (article 6); the nationality to be attributed to nationals of the predecessor State residing in another State (article 7); and the cases where the unity of a family would be impaired by the succession of States (article 11).

Part II contains more detailed rules on the attribution of nationality in the following four specified cases of succession of States. They are: the transfer of part of the territory (section 1); unification of States (section 2); dissolution of a State (section 3); and the separation of part of the territory (section 4).

For its consideration of the issue of reservations to normative multilateral treaties, the Commission had before it the Special Rapporteur's second report on the topic. Based on that report, the Commission adopted preliminary conclusions on reservations to normative multilateral treaties, including treaties in the area of human rights.

Due to ambiguities in the existing doctrine, the General Assembly decided in 1993 that a detailed study was justified on the topic of reservations to treaties and it ordered a Special Rapporteur to prepare a report on the topic. In his first report, the Special Rapporteur found the existing regime, the 1969 Vienna Convention on the Law of Treaties, provided a flexible and adaptable system of reservations. However, it did contain some ambiguities and uncertainties. Those uncertainties were based on questions regarding the acceptance of and objections to reservations. There were also questions on the definition of reservations.

Another important question on reservations was the role of human rights treaty monitoring bodies in regard to the permissibility of reservations. Monitoring bodies are created by the parties involved in a treaty to monitor compliance and help implement a treaty. That issue had two opposed positions: one was that States parties alone were competent to decide on the admissibility and validity of reservations; the other was that monitoring bodies not only had competence on reservations but they could draw on all necessary consequences of that determination.

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The Rapporteur found that human rights monitoring bodies could and should assess whether reservations were permissible when that was necessary for the exercise of their functions. Their competence could also extend to treaties in other fields, such as disarmament and the environment.

The preliminary conclusions of the Commission found that, among other things, the object and purpose of the treaty was the most important criteria for determining the admissibility of reservations; that the Vienna Conventions governed reservations to treaties, including human rights treaties; that a treaty monitoring body had the competence to comment upon and express recommendation with regard to the admissibility of reservations by States; and that, in the event of inadmissibility of a reservation, it was the reserving State that had the responsibility for taking action in either modifying its reservation or withdrawing its reservation.

In regard to future work on the topic, the Rapporteur recommended that the Commission adopt a guide to practice in respect of reservations whose provisions would be guidelines for practice of States and international organizations. The guide would be in the form of a set of draft articles with commentaries and would be prefaced by provisions on reservations in the 1969, 1978 and 1986 Vienna Conventions. The Rapporteur also planned to submit two reports to the Commission in 1998 -- one on the definition of reservations and the other on the formulation and withdrawal of reservations.

On other matters during the forty-ninth session, the Commission considered the topic of State responsibility,, which has been on its programme of work since 1949. In its discussion on the topic, the Commission defined the scope of the topic to be confined to the study of international responsibility of States for internationally wrongful acts. In that connection, the Commission concentrated its study on the determination of the principles which govern such responsibility.

In 1996, the Commission adopted, on first reading, an entire set of draft articles dealing with a diversity of legal issues including the elements constituting an international wrongful act, determining when the wrongful act could be characterized as an international crime, and the consequences resulting from such an act. The draft articles also included the defenses that could preclude wrongfulness, such as distress, State necessity and self-defence. The Commission decided to establish working groups on key issues of the topic. A new Special Rapporteur on the issue of State responsibility, James Richard Crawford (Australia), was appointed.

On the topic of international liability for injurious consequences arising out of acts not prohibited by international law, the Commission decided to deal separately with the two main issues involved in the topic -- the prevention of transboundary damage and the liability resulting from such damage. It agreed to proceed first under the subtitle "prevention of transboundary damage from hazardous activities", and appointed P.S. Rao (India) Special Rapporteur for that part of the topic.

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That topic has been on the Commission's work programme since 1978 and was prompted by the increasing risk of transboundary injuries due to the operation of nuclear power plants and chemical and space industries; and the transport of petroleum and other dangerous or polluting substances across State boundaries. Although activities related to those acts are not prohibited by international law, they can pose a threat to humans or the environment.

The Commission also examined the scope and content of the topic of diplomatic protection in the light of the comments and observations made by governments. In its first time on the programme of work, the Commission decided the topic was appropriate for consideration and took note of a more detailed outline on the scope and content of such consideration, as proposed by the working group on the topic. The Commission appointed M. Bennouna (Morocco) Special Rapporteur for the topic, who will submit a preliminary report based on the outline of the working group.

The working group found that, given the increased exchange of persons and commerce across State lines, claims by States on behalf of their nationals would remain a significant issue. The topic was primarily concerned with the basis, conditions, modalities and consequences of diplomatic protection. The working group defined diplomatic protection as a formal claim made by a State in respect to an injury to one of its nationals.

The Commission decided that the scope and content of the topic would include such issues as: basis for diplomatic protection; the required linkage between the beneficiary and the States exercising diplomatic protection; who could claim diplomatic protection and against whom; the conditions under which diplomatic protection may be exercised; and the consequences of diplomatic protection.

Further during the session, the Commission examined the topic of unilateral acts of States, which was also on the programme of work for the first time at the current session. It decided to initiate work on the codification and progressive development of the legal rules on that subject. The main objective of the study should be to identify and clarify the effects of unilateral legal acts of States and to create rules that were applicable to such acts. The study would include the legal effect of unilateral acts of States on themselves and on other States, as well as such questions as duration and when the acts could be terminated or revoked. V. Rodriguez Cedeno (Venezuela) was appointed Special Rapporteur for the topic and will submit a report to the Commission in 1998.

During the session, the Commission marked its fiftieth anniversary and was recognized for its achievements by Secretary-General Kofi Annan. Addressing the session, the Secretary-General said the Commission had been in the forefront of meeting the challenges of establishing international law and it would continue to do so in the future. "The occasion of the Commission's fiftieth anniversary provides an opportunity not only to celebrate its achievements, but also to evaluate the state of international law and to project its work into the next millennium", he said.

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The International Law Commission, the United Nations body charged with promoting the progressive development of international law and its codification, was established by the General Assembly in 1947 to codify customary international law in areas where it did not exist or had not sufficiently evolved. The Commission, which meets annually, is composed of 34 members elected by the General Assembly for five-year terms and who serve in their individual capacity.

Statements

PETER TOMKA (Slovakia), Chairman of the Sixth Committee, paid tribute to the exceptional contribution of the International Law Commission to the development and codification of international law. The Commission's achievements were greatly recognized in governmental as well as scientific circles. He said the Commission's report always gave rise to an extremely interesting and useful exchange of views in the Committee and the current year would not be an exception.

In 1997 the fiftieth anniversary of the Commission's establishment by the General Assembly was being observed and a colloquium would be held, starting tomorrow, to commemorate the occasion, he said. He welcomed members of the International Law Commission present at the meeting, particularly, its Chairman, Alain Pellet, and the Special Rapporteurs, James Crawford, Vaclav Mikulka, Victor Rodriguez-Cedeno and P. S. Rao.

Recalling announcements made at previous meetings of the Committee, he said the following thematic approach would be used for considering the Commissions's report: from 28 October to 3 November, the Committee will consider Chapters I to III and part of Chapter X, dealing with the introduction, the summary of its work, and other decisions and conclusions. Chapter IV, which concerns nationality in relation to succession of States, will be considered from 30 October to 3 November.

On 4 and 5 November, the Committee will concentrate on the topic of Reservations to Treaties. On 6 and 7 November, it will focus on Chapter VI, dealing with state responsibility; Chapter VII on international liability; Chapter VIII on diplomatic protection; Chapter IX on unilateral acts; and Chapter X on decisions and conclusions.

ALAIN PELLET, Chairman of the International Law Commission, introducing the Commission's report, said that the Sixth Committee did not always properly discharge its role of guidance and leadership. While it often lent needed criticism of the Commission's work, often such criticism did not lead to clear or constructive guidelines. That created a situation where the Commission was reduced to trying to decipher the often contradictory and sometimes confusing signals sent to it. Too often the Commission received no reply to the question that it put to the Committee, despite attempts to make questions clear and precise.

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In addition, he continued, governments individually seldom made comments that the Commission hoped for on draft articles that had been in preparation for a long time. To date, for example, just one State had submitted its comments to the Secretariat on the draft on State responsibility, and only two States had reacted to the 1996 report of the working group on international liability for injurious consequences arising out of act not prohibited by international law.

He said that one of the most valuable aspects of the process of the progressive development and codification of international law, which was the mandate of the Commission, was the Commission's complementarity with the Committee. The Commission undertook a reconsideration of its working methods based on recommendations made by the Committee. However, the Commission needed further input and support from the Committee. Many Commission members felt that they did not always enjoy the support or confidence of the Committee.

With that in mind, he encouraged the Committee to study the Commission's annual reports with care, to consider the suggestions in those reports and take positions at an early stage of the work on a topic. The Committee should ensure an improved dialogue with the Commission. The Commission would meet the expectations of States and the Committee more effectively, if it was given clear and timely guidelines throughout the course of its work. Further, it would be useful to find less formal methods for conducting exchanges between the Commission and the Committee than the ones that currently existed.

On the topic of reform, he said Commission members were struck that the Secretary-General was not planning any reform in the development and application of international law. Although the Commission had performed well over its 50 years, it was perhaps time to consider adaptations and reforms that might enhance its effectiveness. The Commission's fiftieth anniversary should be an occasion not only for deep thought about that issue, but also for specific reforms based on those thoughts. One reform, for example could be in the way the Commission elected its members. Last year, 18 new Commission members were elected out of 34. While those newcomers adapted well, such abrupt changes in the Commission's composition adversely affected the continuity of its work. Election methods should be considered that would result in a less abrupt change in membership.

Another problem, he continued, was that no woman had ever been elected to the Commission. Although a solution to that problem was not obvious, the Committee should anticipate some regulatory measures on that subject. The Commission could correct that and many of its faults if it enjoyed the help and support of its "big sister" and mentor in the service of international law -- the Sixth Committee.

On the Commission's method of work during its session, he said attention was focused more on implementing the decisions and guidelines it had adopted last year than on adopting new ones. The Commission agreed to conduct future debates on the draft articles in a way that avoided repetition and the reopening

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of issues had already been considered. It also took note of the suggestion that the Commission chairmanship should go to a different region at the beginning of each quinquennium. The Commission would consider that matter further.

In accordance with decisions taken last year, the Commission also endeavoured to strengthen its relationships with other bodies and give them new impetus, he said. It also decided to involve more of its members in the inter- sessional work of the special reporters. Three of the new special reporters opted for the establishment of a consultative group, consisting of Commission members who would assist them in the preparation of their reports.

FRANZ CEDE (Austria) said that, in order to become a more interactive partner with the Commission, the Committee should consider some structural reforms. One of the shortcomings of the Committee was the lack of a true dialogue among delegations when they considered the items on the agenda in their traditional pattern. While the formal setting of the Committee provided for oral statements from representatives, those statements were often lengthy and technical and often resembled academic lectures, rather than concise statements of legal position.

He wanted to make several suggestions to make the Committee a more efficient and a more interesting body. First, delegations should make their statements as concise as possible, stressing the key legal positions and leaving the details to a written memorandum. That measure would save time and would make oral statements more "user friendly", because the relevant State position could be easily identified. Second, a more casual set-up should be established for open exchanges among the representatives under the authority of the Chairman. Third, whenever a topic was being debated that directly involved a particular member of the Commission -- the special rapporteur, for example -- that member should be present to clarify or elaborate on the issues discussed.

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