SIXTH COMMITTEE CONCLUDES CONSIDERATION OF REPORT OF INTERNATIONAL LAW COMMISSION
Press Release
GA/L/3058
SIXTH COMMITTEE CONCLUDES CONSIDERATION OF REPORT OF INTERNATIONAL LAW COMMISSION
19971107 Legal rules that addressed the consequences of the imposition of sanctions were called for by the representative of Libya this afternoon as the Sixth Committee (Legal) concluded its consideration of the International Law Commission's report on the work of its forty-ninth session.He said that some States enacted national laws that had transboundary effects, including the imposition of sactions on other States that affected their sovereign rights, and peace and security. Stating that such santions had been used increasingly in recent years, he urged the Commission's working groups to conclude their work by laying down legal rules on the consequences of unilateral acts, including economic sanctions.
Also on the topic of unilateral acts of States, the representative of the Republic of Korea said it was not the act, but its consequence that would be judged under international law. The Commission's work should reflect that aspect, he said.
In his concluding statement, the Chairman of the International Law Commission, Alain Pellet, said that there should be precise guidelines from States and the Sixth Committee on what the Commission should be doing. Dialogue between the Commission and the Sixth Committee should be strengthened as well as that with other expert organizations engaged in the development of international law.
Statements were also made by representatives of Brazil, Bangladesh, Canada and Argentina. The observer for Switzerland also spoke.
The Committee will meet again at 10 a.m. on Tuesday, 11 November, to begin its consideration of item 144, Convention on jurisdictional immunities of States and their property.
GAL3058
Committee Work Programme
The Sixth Committee (Legal) met this afternoon to continue its consideration of 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.)
Statements
PAULO ROBERTO DA FONTURA (Brazil), addressing the question of reservations to treaties, said his delegation agreed that the Vienna regime -- the Vienna Conventions on the Law of Treaties of 1969 and 1986 -- was flexible enough to be applied to all multilateral treaties. There was, therefore, no need at present for a specific regime for some normative treaties, including human rights treaties. Monitoring bodies might express an opinion on the permissibility of reservations, but they could not go further and regard them as null and void or draw the consequences of such finding. On diplomatic protection, he said the approach chosen by the Commission on work in that area was satisfactory. However, it should examine carefully the issue of 'functional protection' which applied to cases where the injury was suffered by an agent of an international organization.
The Commission should also dedicate some time to examining the issue of unilateral acts of States, he said. As regards the effects of such acts, Brazil had a special interest on the views of the Commission on the creation of rights for other States. He stressed the importance of a detailed analysis of the topic on lawfulness of unilateral acts under international law.
He said the preamble and the draft articles on nationality in relation to the succession of States adopted this year by the Commission well balanced and well structured. Brazil welcomed the adoption of the Commission's future work plan on the topic of State responsibility. It was important that the Commission accelerated its deliberations on the subject so that the second reading of the draft articles, which had been adopted in 1996, could be completed by the end of the mandate of its present members. In studying international liability for non-prohibited acts, he said the Commission should give priority to the questions of liability and reparation, especially the problem of compensation.
ABDUSALAM SERGIWA (Libya) said, on reservations to treaties, that the Vienna regime had struck a balance between the interests of States and individuals. It also allowed for reservations that did not infringe upon the essence and purpose of particular treaties. That regime should be applicable
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to all multilateral treaties, including human rights treaties. The right to make reservations was one of the solemn rights of States which allowed them to proclaim their interests without affecting the treaty. Monitoring bodies to treaties should not be able to decide if the reservation was permissible; the role of such bodies should be confined to making recommendations to States.
On unilateral acts of States, he said that some States enacted national laws that have transboundary effects. Such acts included imposing sanctions on other States in a way that affected their sovereign rights and hindered peace and security in all areas. Also, such sanctions had been increasingly used in recent years. The working groups on the topic should conclude their work by laying down legal rules on the consequences of unilateral acts, including economic sanctions on other States.
A.K.H. MORSHED (Bangladesh) said the draft articles adopted by the Commission on nationality and State succession was a viable structure for the development and codification of the topic. The provision for individual option in determining nationality could be usefully expanded to avoid statelessness, which should remain an overriding aim in situations involving the succession of States.
On the Commission's work on reservation to treaties, he said the integrity and uniform application of the regime of the Vienna Conventions to all treaties should be preserved. The question of international liability was "an idea whose time has come" and was most important and relevant on the Commission's agenda. His delegation welcomed the appointment of P.S. Rao as Special Rapporteur on the issue. The working group on diplomatic protection, in its preliminary examination had brought out some useful contemporary concerns in the era of globalization and that the subject offered scope for a systematic modern treatment.
Commenting on the Commission's work methods, he said using questionnaire to elicit the views of governments did not encourage what should ideally be an interactive dialogue. The Commission should explore innovative forms for a fruitful exchange with governments.
JOHN T. HOLMES (Canada), speaking on the question of State responsibility, said his country had concerns about the Commission's draft provisions relating to the system of counter-measures, arbitration and conciliation, and its effect on the existing system of treaties. Canada welcomed the Commission's work on international liability for injurious consequences of acts not prohibited by international law. It supported the approach taken by the Commission on reparation as it was preferable to compensation. On the future development of articles on the topic, he said it would be desirable to permit States to override them when a treaty on specific issues of liability was being negotiated. In addition, the general issue of relationship with existing treaty law in the field of international liability should be addressed.
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While not objecting to consideration of diplomatic protection claimed by international organizations for their agents, he said it should be made clear in the Commission's reports that the claim was distinct from that made by States. As regards unilateral acts of States, he said there should be clarification of the rules governing the creation of rights and obligations by acts intended to produce legal effects.
On the Commission's work methods, he said one of next year's split sessions should be held in New York to reduce costs and also to enable members of the Commission to meet Sixth Committee members. His delegation would welcome the organization of informal briefings and consultations during the New York segment. Calls for greater interaction between the Committee and the Commission could only take effect in New York.
CHOUNG IL CHEE (Republic of Korea) said that, on the topic of international liability arising out of acts not prohibited by international law, the Commission should consider making the prevention of such harmful acts the duty of all States. On diplomatic protection, his delegation supported the scope of the topic that had been endorsed by the Commission. The key problem was the lack of domestic rules on the issue. The Commission should focus its work on consolidating national practice and developing concrete rules on the topic.
On the unilateral acts of States, he said the name of the subject should be clarified because it was not the act but the consequences of the act that would be judged under international law. States could always take unilateral actions, but their results would be subject to perusal by the international community. Another problem of that topic was to identify what constitutes an international actor. On the general work of the Commission, his delegation believed it had selected too many topics for consideration and its agenda was too ambitious.
SILVIA A. FERNANDEL DE GURMENDI (Argentina), speaking on State responsibility, said many of the Commission's articles were already recognized by States. Early conclusion of work on the articles should be a priority. Her Government would provide its comments to the Commission's Special Rapporteur on the issue of State responsibility. Her delegation had no problem with work on the question of international liability on non-prohibited acts, starting with the issue of prevention of transboundary damage from hazardous activities. The issue of a regime on international liability should be studied.
The question of diplomatic protection was of particular interest to Latin American States because of early development of doctrines on the subject by two Argentine jurists. The results of their work had been incorporated by many Latin American countries into their constitutions. Diplomatic protection had not lost its validity. It was important for an appropriate balance to be struck in the interest of all parties. The Commission should start
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codification of articles on unilateral acts of States. It was not only possible but feasible. Work should focus on unilateral acts of States, and should be broadened in future to cover those of international organizations.
DIDIER PFIRTER, observer for Switzerland, expressed doubts whether the protection of international organizations and companies should be considered under the topic of diplomatic protection. Also, differences in practices and doctrine on the issue meant that the area was not ripe for codification. By taking it on, the Commission might get into a situation that might be hard to get out of. Protection need not extend to stockholders, because the laws relating to them and their status were not clear.
On the topic of unilateral acts of States, he said only legislative actions should be covered under the scope of the topic. Because those actions had normative effects. Unilateral secondary acts, such as those on behalf of other States, would have to be excluded. The Commission should also exclude unilateral acts other than those taken by States.
Concluding Statement by Commission Chairman
ALAIN PELLET, Chairman of the International Law Commission, in his concluding statement, said there seemed to be broad agreement that work on State responsibility should be completed. The attention of the Special Rapporteur on the subject would be drawn to the comments of representatives. He reiterated his call for precise guidelines from States and the Sixth Committee on what the Commission should be doing.
Noting a criticism of the Commission's functions by a delegation, he said Commission members showed independence in their work. He said the recent Colloquium marked the fiftieth anniversary of the Commission's work was successful and that another one was planned for next April in Geneva, with a focus on the achievements of the Commission.
He said an informal meeting between Commission members and the Sixth Committee held recently in New York deserved to be repeated. There was need to strengthen dialogue between the two bodies and between the Commission and expert organizations engaged in the development of international law. He had doubts about a proposal that the Commission should shorten and simplify its questionnaire to governments. The length of questions depended on the topics. All that was required of governments was State practice. Thought should be given to the way the Commission could renew itself in carrying out its mandate.
On the issue of duration of Commission sessions, on which various statements were made, he said the Commission usually met for 12 weeks and not 10 as many thought. It was the Commission which had, as an exceptional measure and in response to the Organization's financial situation, suggested a 10-week session for this year. A heavier workload was expected in 1998 as
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more Special Rapporteurs would be presenting reports, and that justified the additional weeks suggested by the Commission. The workload was expected to increase further in 1999. Commission members wanted their work to be as effective as possible.
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