ISR"L SAYS ITS EXCLUSION FROM LAW COMMISSION, UNDER UN SYSTEM OF REGIONAL GROUPS, LOSES SERVICE OF QUALIFIED PERSONS

7 November 1997

Press Release
GA/L/3057

ISRAEL SAYS ITS EXCLUSION FROM LAW COMMISSION, UNDER UN SYSTEM OF REGIONAL GROUPS, LOSES SERVICE OF QUALIFIED PERSONS

19971107 Legal Committee, Continuing Review of Commission Report, Is Asked To Study Problem and Recommend Solution

Persons eminently qualified to contribute to the development of international law were being prevented from doing so because of the unfortunate linkage between elections to membership of the International Law Commission and the regional grouping system in the United Nations, said the representative of Israel, as the Sixth Committee (Legal) continued its consideration of the Commission's annual report.

Israel's representative said a key problem in the Commission's membership was that its statute excluded candidates from some countries, including Israel, if they were not connected to a regional group. The Commission's membership was meant to reflect the principal legal systems of the world and its members should possess the requisite qualification of competence in international law, he said. Noting that the same problem arose in elections to the International Court of Justice, he urged the Sixth Committee to examine the matter and rectify the situation.

Other aspects of the Commission's report on the work of its forty-ninth session discussed this morning included State responsibility, international liability for transboundary damage, diplomatic protection, unilateral acts of States, nationality and State succession, and the Commission's working methods.

The representative of Japan said the Commission should confine its work on international liability to transboundary damage and activities having a risk of causing harm. Creeping pollution and the problem of global commons should be excluded, at least at the initial stage.

On the same issue, the representative of Australia stressed the need for additional elaboration by the Commission on such questions as indemnities, rights of action, dispute settlement principles and appropriate arbitral and other bodies, rights of inspection, access and clean-up.

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Addressing the question of Nationality in relation to succession of States, the representative of Portugal said the Commission should make reference to decolonization issues in its draft articles covering Specific Categories of Succession of States.

Statements were also made by the representatives of Cameroon, Slovakia, India, Bahrain, Myanmar, Algeria and Italy.

The Special Rapporteurs of the International Law Commission, Alain Pellet (France) and Vlacav Mikulka (Czech Republic) made statements in response to issues raised by representatives.

The Committee will meet again at 3 p.m. today to conclude its examination of the Commission's report.

Committee Work Programme

The Sixth Committee (Legal) met this morning to continue its consideration of agenda item 147, the report of the International Law Commission on the work of its forty-ninth session, with an emphasis on Chapters VI through X. Those chapters deal with State responsibility, international liability for injurious consequences arising out of acts not prohibited by international law, diplomatic protection, the unilateral acts of States, and other decisions and conclusions of the Commission. (For background, see Press Release GA/L/3049 of 27 October.)

CHUSEI YAMADA (Japan) said, on the draft articles on State responsibility, that the main concerns of his Government were: the lack of a requirement of damage as well as the omission of fault and negligence in article 1; whether the crime of a State had been sufficiently established in international law, and if a separate regime was called for from that of civil responsibility; whether circumstances, except those of counter-measures and self-defence, should preclude responsibility rather than wrongfulness; and the limitation on counter-measures, in particular the conditions relating to the resort to counter-measures against international crimes.

On the topic of international liability for injurious consequences of actions not prohibited by international law, he said the Commission had spent 20 years trying to define the scope and content of the topic and it should start its current work with aspects of the topic that were most practicable. The Commission should confine its work to transboundary damage and to activities having a risk of causing harm. Creeping pollution and the problem of global commons should be excluded, at least at the initial stage.

THOMAS FOZEIN (Cameroon), speaking on Reservations to Treaties, said it was the legitimate right of States to evaluate treaties and express reservations if they wished. The present stage of the Commission's work on the subject seemed to be in the right direction. He paid tribute to the Commission's Special Rapporteur, Alains Pellet, for his work on the project. The system of reservations set forth in the Vienna Conventions had been operating satisfactorily to date. He stressed the extreme diversity of areas covered by normative treaties. Any new regime would lead to proliferation of legal instruments, he said, adding that flexible rather than strait-jacket regimes were needed. The right to express reservations should not be absolute, but recognized as a safeguard. It was up to parties to spell out provisions not subject to reservations, so as to ensure the integrity and universal acceptance of that legal instrument.

He said his delegation endorsed the first three preliminary conclusions of the Commission which covered the preservation of the achievements of the Vienna regime; issues the Vienna conventions could not resolve; and the need

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for a guide to practice in respect of reservations. Monitoring bodies should not become judges on the admissibility or otherwise of reservations. It was not for them to arrogate to themselves functions beyond their mandate.

JAN VARSO (Slovakia) said the principles outlined in the Commission's articles on nationality in the succession of States were contained in his country's legislation on nationality applied after the dissolution of Czechoslovakia. The key factor in creating rules on the topic was that they needed to harmonize the different interests of all bodies including States, natural persons and the international community. Changes in sovereignty may cause a number of difficult problems regarding nationality. What should be maintained however were clear rules that prohibited any discrimination in the determination of nationality.

On the topic of relations between the Commission and the Sixth Committee, he said all the actors involved, including Committee members, Commission members and legal advisers, should feel responsible for the actual state of affairs and should contribute to the codification and progressive development of international law so that strategy in the future could be based on a solid foundation.

MARK GRAY (Australia), addressing issues of International Liability for Prohibited Acts, said that given their technical nature, on which the International Law Commission had sought comments, his country had prepared written responses which would be provided to it. Australia had drawn attention to the need for greater clarity in a number of the draft articles.

Commenting on provisions of the draft articles dealing with prevention of transboundary damage from hazardous activities, he said there might be further prevention-related issues associated with such activities which became hazardous only when they coincided or came into contact with another activity. That raised the possibility of expanded information exchange, broader risk assessment taking into account not only the environment of other States, but also activities in other States, and perhaps a more liberal consultation regime. In certain circumstances, he said, there might also be more than one State of origin, for example where the effects of transboundary activities in two States were felt in a third State but occurred only because of the combined effects.

On the question of liability, he said there was need for additional elaboration by the Commission, covering such issues as indemnities, rights of action, dispute settlement principles and appropriate arbitral and other bodies, rights of inspection, access and clean-up.

B.B. TIMWARI (India) said, on the topic of diplomatic protection, that his delegation agreed that the main thrust of the study should be to deal with claims brought by States on behalf of their nationals against another State, but should not involve the direct claims between States themselves. The

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approach conformed to the doctrine of diplomatic protection as it developed in State practice and customary international law. The claims of dual nationals, the possibility of parallel protection of claims by nation States as well as international organizations, were all complex issues that arose from the topic, and needed to be addressed by the Commission.

On the unilateral acts of States, he said the topic was of particular relevance due to the unprecedented increase in interaction between States and the frequency with which unilateral acts were resorted to by States impinging on the vital interest of other States. The focus of the Commission's work on the topic should be on unilateral acts that were intended to produce legal effects creating, recognizing, safeguarding or modifying rights, obligations or legal situations. Consequently, State activities that did not generate legal consequences fell outside the scope of the study.

HUSSAIN AL-BAHARNA (Bahrain), speaking on the decisions and conclusions contained in the Commission's report, said his delegation did not favour the proposed split session of the Commission in 1998. The extension of its present 10-week session to an 11-week or 12-week session should depend on an annual evaluation of the Commission's volume of work. It favoured consultations between the Commission and United nations organs in connection with its preliminary conclusions on reservations to treaties. It also supported the view that the Commission should broaden its subjects to cover new developments in international law.

ALAN BAKER (Israel) said, on the topic of nationality and State succession, that some consideration should be given to creating a definition of "succession of States". Issues arising in question of nationality involved to a greater extent the internal relationships between "States concerned" and the "persons concerned". The Commission should devise a definition that would be more relevant, for the purpose of the articles, to the legal bond between a State and individuals in its territory. The Commission should also refer to responsibility for administration of territory and its population in its definition of the replacement of one State by another.

On the work of the Commission, he said its membership was based not upon political representation but was intended by its statute to reflect the main form of civilization and the principle legal systems of the world. Its members, according to the statute, should possess the requisite qualification of competence in international law. However, the current electorial process did not permit candidates from his country to participate because of the linkage of that process to the regional grouping system. As a result, the Commission was unable to have its members nominated by the Member State since a candidate from a State not connected to a regional group was excluded from the elections process.

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The Committee should examine that matter with a view to rectifying the situation. The same problem arose in elections to the International Court of Justice. It was regrettable that persons eminently qualified to serve and contribute to the development of international law were prevented from doing so because of the unfortunate linkage of elections to the regional grouping system in the United Nations.

PAULA ESCARAMEIA (Portugal), speaking on nationality in relation to State succession, said mention should be made to decolonization issues in Part II of the Commission's draft articles on Specific Categories of Succession of States. The Commission's work on Reservations to Treaties was of crucial importance for the whole regime of treaty law. Although Portugal did not wish the principles enshrined in the 1969, 1978 and 1986 Vienna Conventions to be altered, it believed strongly that there was an urgent need for their clarification.

On the issue of State Responsibility, her delegation had no problem with the definition of State crime in the draft articles. Portuguese domestic legislation foresaw the criminal responsibility of legal persons, including that of the State, and it saw merits in the future development of an international criminal responsibility. As regards International Liability for Prohibited Acts, she stressed Portugal's support for a provision of the Commission's draft articles which emphasized the importance of preventive action. Her delegation endorsed the payment of compensation for transboundary harm with the understanding that it applied to the environment. Interaction between the Commission and other expert bodies should be encouraged. Portugal favoured the convening of periodic open-ended informal meetings between members of the Commission and Sixth Committee representatives.

KYAW WIN (Myanmar) said his country had made every effort to build up and strengthen the currently existing legal system that had been inherited and deployed since its independence nearly 50 years ago. That job was taken on not just to update and modernize the existing laws but also to promote the rule of law within the Union, especially in those territories that only in recent years had seen a cessation of armed insurgencies and achieved a state of peace and stability. His delegation acknowledged the crucial role international law played in the preservation of peace and security, as well as in promoting friendship and harmony among countries.

He said the topics of State responsibility, international liability for injurious consequences arising out of acts not prohibited by international law, reservations to treaties and nationality and State succession were matters of great relevance to the present day international realities where new States were being born, divided States were being reunited and globalization of trade and technology had led to people of the world into closer contact with one another. A stable and tranquil world order without international law being clearly defined would be impossible to imagine.

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AHCENE KERMA (Algeria) said recent changes on the international scene had shown the importance of the topic of Nationality and Succession of States. States had the prerogative on nationality questions. There was need, however, for balance between the legitimate interests of States and individuals whose right to nationality was important, particularly in cases of State succession. There was also need for a precise definition of the link between individuals seeking nationality and the State concerned. The issue of dual or multiple nationality should be considered pragmatically by the Commission. His delegation supported a declaration on the subject of Nationality and State Succession that would command wider support.

On Reservation to Treaties, he said the Vienna Conventions were serving their purpose but there was need to resolve ambiguities in some of their provisions. The monitoring responsibilities of treaty bodies gave rise to problems. Those bodies should not be authorized to judge reservations to treaties expressed by States. On unilateral acts of States, he stressed the importance of compensation for victims of harmful transboundary acts.

He expressed his delegation's satisfaction with the Commission's programme of work. He urged cooperation between the Commission and expert bodies in the field of international law.

MAURO POLITI (Italy) said, on the topic of State responsibility, that the distinction between international crimes and other internationally wrongful acts had a sound legal basis and there should be no reservations expressed on that notion. The distinction between international crimes and delicts required that specific legal consequences apply to the relationship between a wrongdoing State and an injured State in the context of international crimes. It was important that the determination of the Commission of an international crime not be left to the decision of one State, but attributed to the competence of organs that were representative of the international community or to international judicial bodies.

On the topic of diplomatic protection, he said that when an individual declined diplomatic protection from his or her State of nationality that State may nevertheless exercise diplomatic protection. That position was consistent with the basic assumption, upheld by international jurisprudence, that diplomatic protection was the right of the State. Also, the Commission's consideration of diplomatic protection should not include protection claimed by international organizations for the benefit of their agents.

Statements by Special Rapporteurs

VACLAV MIKULKA (Czech Republic), Special Rapporteur on nationality and State succession, said he was encouraged by the agreement shown on some principles, such as emphasis on the need of the draft articles to maintain a balance between the interests of States and individuals. Delegations also seemed to give merit to the Commission's approach to the protection of human

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rights in regard to nationality and statelessness. They were also in accordance with the Commission's view that the draft text should take the form of a draft declaration.

ALAIN PELLET (France), Special Rapporteur on reservations to treaties, said many States agreed that the Vienna regime should be maintained and it should represent the starting point for further work on the subject. They also commented on their relevant application to human rights treaties.

He noted that some delegates had also said the conclusions of the Commission, though only preliminary, were premature. It should be clear that the Commission did not intend to adopt a guide to practice on the topic for another four years, and not until all views were heard. The Commission, however, was of the view that it was urgent to act on a preliminary basis on the topic, and save more definitive conclusions for a later stage.

Other general problems raised by States, he said, included the lack of a distinction between interpretive declarations and reservations, questions on the definition and terms on the object and purpose of a treaty, and the non-existence of an objective mechanism to determine admissibility of a reservation.

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