LEGAL COMMITTEE BEGINS CONSIDERATION OF INTERNATIONAL LAW COMMISSION REPORT

Press Release
GA/L/3081

LEGAL COMMITTEE BEGINS CONSIDERATION OF INTERNATIONAL LAW COMMISSION REPORT

The Sixth Committee (Legal) this morning began consideration of the report of the International Law Commission with discussion focusing on issues relating to international liability resulting from transboundary damage.

Introducing the report on the Commission's fiftieth session, Joao Clemente Baena Soares (Brazil), its Chairman, said a first reading of a set of 17 draft articles on the subject of international liability for injurious consequences arising out of acts not prohibited by international law had been completed. The Commission considered it necessary to protect not only the interests of the States likely to be affected by a hazardous activity, but also those of affected persons. Provisions for dispute settlement in the draft articles called for the appointment of a fact-finding commission if the parties to a dispute were unable to agree on a means for settlement within a period of six months.

At the start of the meeting, Jargalsaikhany Enkhsaikhan (Mongolia), Chairman of the Sixth Committee, acknowledged the International Law Commission's exceptional contribution to the development and codification of international law. Its achievements were recognized by governments as well as by the scientific community, he said.

Statements were made by the representatives of Mali, Guatemala and the United Republic of Tanzania, as well as by the Observer for Switzerland.

Also this morning, the Committee approved, without a vote, a draft decision submitted by Guatemala requesting its Chairman to transmit the observations of the International Court of Justice contained in document A/53/326 to the Fifth Committee (Administrative and Budgetary) as they related closely to agenda item 113 -- the 1998-1999 biennial budget -- of the current Assembly session. The Court indicated that additional resources were required to meet its increasing workload.

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The International Law Commission, a 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 does not exist or has not sufficiently evolved. The Commission, which meets annually, is composed of 34 members elected by the General Assembly for five-year terms. They serve in their personal capacity.

The Committee will meet again tomorrow, at a time to be announced in the Journal, to continue its discussion of the report 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 fiftieth session (Geneva 20 April-12 June and New York 27 July-14 August) (document A/53/10). Among the topics considered by the Commission in the period under review were the following: international liability for injurious consequences arising out of acts not prohibited by international law; diplomatic protection; unilateral acts of States; State responsibility; nationality in relation to the succession of States; and reservations to treaties.

The Commission adopted on first reading 17 draft articles on the question of international liability for injurious consequences arising out of acts not prohibited by international law, with commentaries on prevention of transboundary damage from hazardous activities. It decided to transmit the draft articles to Governments for comments and observations.

The Commission also considered the preliminary report of the Special Rapporteur on diplomatic protection, which dealt with its legal nature and that of the rules governing it. The Commission established a working group to consider possible conclusions which might be drawn on the basis of the discussion as to the approach to the topic and also to provide directions in respect of issues which should be covered by the report of the Special Rapporteur for its next session.

As regards the topic on unilateral acts of States, the Commission examined the first report of the Special Rapporteur, and requested him to submit draft articles on its definition and scope in his second report. It considered the first report of the Special Rapporteur on the question of State responsibility, which dealt with general issues relating to draft articles on the subject, and established a working group to assist him in the consideration of various issues during the second reading of the articles.

The Commission considered the fourth report of the Special Rapporteur on nationality in relation to the succession of States and established a working group to examine the question of the possible orientation to be given to the second part of the topic dealing with the nationality of legal persons. The Commission's report contains the preliminary conclusions of the working group.

With respect to the topic on reservations to treaties, the Commission considered the third report of the Special Rapporteur concerning the definition of reservations (and interpretative declarations). It adopted draft guidelines covering definition and object of reservations, instances in which they might be formulated when notifying territorial application and reservations having territorial scope. Other guidelines dealt with reservations formulated when notifying territorial application, those formulated jointly and on the relationship between definitions and admissibility of reservations.

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Among its other decisions, the Commission said its Special Rapporteurs should submit their reports in time to ensure their prompt availability in all languages before the beginning of its sessions. It also decided to hold its fifty-first session from 3 May to 23 July 1999 in Geneva, and a subsequent one also at Geneva from 24 April to 2 June and from 3 July to 11 August 2000.

As part of its fiftieth anniversary celebrations, the Commission held a two-day seminar at the beginning of its fiftieth session with the theme covering a critical evaluation of its work and lessons learned for its future. A book entitled "Making Better International Law: The International Law Commission at 50" was published in June. It contained the proceedings of the Colloquium on the Progressive Development and Codification of International Law held on 28 and 29 October 1997 in New York. Another book, "The Analytical Guide to the Work of the International Law Commission", was published in July as a contribution by the Codification Division of the Office of Legal Affairs to commemorate the fiftieth anniversary of the Commission. The publication complemented one on "The Work of the International Law Commission" currently in its fifth edition. A website of the Commission was also created by the Codification Division to commemorate the Commission's fiftieth anniversary.

During the period under review, the Commission conducted a dialogue with the International Court of Justice, the Asian-African Legal Consultative Committee, the Inter-American Juridical Committee and the Ad Hoc Committee of Legal Advisers on Public International Law of the Council of Europe. It held a training seminar for 23 participants from different countries.

On its long-term programme of work, the Commission decided that the selection of topics should be guided by the needs of States in respect of the progressive development and codification of international law, among others. It further agreed that there should be no restriction to traditional topics, but that those reflecting new developments in international law and pressing concerns of the international community as a whole should be considered.

Statements

JARGALSAIKHANY ENKHSAIKHAN (Mongolia), Committee Chairman, acknowledged the International Law Commission's exceptional contribution to the development and codification of international law. Its achievements were recognized by governments as well as by the scientific community. He joined in the tribute paid the Commission for its original formulation of the Rome Statute of the International Criminal Court. He recalled that the report of the Commission had always been a high point in the Sixth Committee's work. He hoped the exchange of views on the report would, as in previous occasions, be interesting and intellectually stimulating.

He announced that the Committee would consider the first five chapters of the Commission's report.

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JOAO CLEMENTE BAENA-SOARES (Brazil), Chairman of the Commission, introducing its report, said that it had, since its establishment in 1945, achieved many accomplishments in the progressive development of international law and its codification. It had produced more than 20 sets of draft articles setting forth basic rules in most of the key areas of international law. They ranged from State jurisdiction to the position of the individual, and from succession of States to natural resources and economic relations. Many of those sets of draft articles had, in turn, been transformed into major global treaties. Most prominent examples were the law of diplomatic and consular relations, the law of treaties, the law of the sea and the law of international organizations. Those global treaties had assumed a fundamental role within the domains of international law. The International Court of Justice had itself, on a number of occasions, referred to certain draft articles of the Commission and pronounced them as reflecting existing rules of international law.

Turning to the work of the Commission's fiftieth session, he said it made important progress on six topics on its agenda: international liability for injurious consequences arising out of acts not prohibited by international law; State responsibility; reservations to treaties; diplomatic protection; unilateral acts of States; and nationality in relation to succession of States. In addition, the Commission paid special attention to its long-term programme of work and identified and examined a number of topics for future undertaking.

On the topic of international liability, he said the Commission considered it necessary to protect not only the interests of the States likely to be affected by a hazardous activity, but also those of persons, natural or juridical, thus affected. Provisions for dispute settlement in the draft articles called for the appointment of a fact-finding commission if the parties to a dispute were unable to agree on a means for settlement within a period of six months.

On the Commission's work on diplomatic protection, he said a number of its members expressed caution in assimilating diplomatic protection and human rights or establishing a hierarchy between them. It was noted that while it was true that the law of diplomatic protection had existed long before the emergence of human rights in international law, the two approaches existed in parallel, and their respective potentials overlapped only partially. To jettison diplomatic protection in favour of human rights would be, in some instances, to deprive individuals of a protection which they had previously enjoyed. It was noted that the human rights approach could be allowed to permeate the Commission's further debate on the topic on a case-by-case basis.

The Commission must not continue to question the very underpinning of diplomatic protection in adopting such a focus, he said. Questions were raised as to whether a State could exercise diplomatic protection in parallel with an international recourse taken directly by an injured individual or whether the State only had the right to exercise diplomatic protection after all other domestic modes of dispute settlement had been exhausted.

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SALIFOU FOMBA (Mali), in reference to several of the conclusions by the working group on diplomatic protection, agreed that the customary law approach should form the basis for work on the topic. While supporting an examination of secondary rules in connection with diplomatic protection, he said one should not put primary and secondary rules into separate watertight containers. Mali agreed that one should first deal with the institutions and rules of diplomatic protection.

He also agreed that the exercise of diplomatic protection was the right of the State. It was proper, though, to take into account the development of international law with reference to the protection of the rights of individuals. Concerning reservations to treaties, he said that unilateral declarations by a State need not necessarily be considered reservations to the treaty. The position of Mali was in line with the spirit and the letter of the relevant sections of the project on a practical guide on the issue.

ROBERTO LAVALLE VALDEZ (Guatemala), referring to the 17 draft articles on international liability for injurious consequences arising out of acts not prohibited by international law, said that question had been subject to a series of "amputations", which served to delete all provisions that referred to liability. The abbreviated draft would have as its exclusive objective a regime of prevention. The work which created the abbreviated draft had been done very carefully. However, the sponsors of the abbreviated text failed in their effort to fully remove the concept of liability from the text.

TUVAKO N. MANONGI (United Republic of Tanzania), addressing the subject of international liability, said the Commission had made a bold move in recommending a specific regime on prevention distinct from one on liability. The distinction suggested was somewhat confusing. While, on the one hand, prevention was better than cure, it also saw liability as having a dual significance -- prevention and reparation. It would seem that in both instances prevention was only a cautionary obligation of conduct with no consequential effect as of itself until and unless conduct resulted in an undesirable effect or fault.

Creation of a separate regime based solely on the obligation to prevent would presume liability at a time no actual effect had occurred, he said. His delegation was concerned that that might promote instances where States would not have to wait until harm occurred in order to invoke liability. That course of action was fraught with subjective influences and was therefore worrying.

He said it was doubtful whether the notion of strict liability or the exclusion of fault by concentrating on result alone was just and fair when applied strictly on the regime of State liability. One of the consequences of globalization and liberalization was that in many cases the activity causing harm would be attributed to a private person and not to the State. A secondary responsibility should be appropriately assigned to the State. He commended the Commission for its sense of fairness which went into the drafting of a provision

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which dealt with equitable balance of interest. A factor such as the financial inability of an underdeveloped State to acquire latest technology which could enhance their capacity to avert harm should be taken into account in the development and codification of international environmental law.

LUCIUS CAFLISCH, Observer for Switzerland, speaking on transboundary damages, said prevention of damage should be based on the standard of due diligence by States. The draft articles were not a convention that dealt with prevention on transboundary damage, or on State responsibility. The question was whether there should be a provision for damage to ecosystems. On article 2 of the draft, which dealt with use of terms, he said a standard of significant damage was not explicitly or sufficiently defined. As far as article 8 on impact assessment was concerned, he said his delegation found the Commission's proposals interesting in that whenever there was risk of damage, there was obligation for negotiation between the States concerned. The results of those negotiations should respond to the equities of the situation.

As regards article 17, settlement of disputes, he said his delegation found it unduly weak because it did not provide for arbitral or judicial settlement.

On the Commission's work on diplomatic protection, he said it should study that for companies, associations and individual members of those bodies as well. The exercise of diplomatic protection should remain with States. His delegation felt the Commission should consider diplomatic protection and avoid raising other issues such international human rights protection.

Action

The Committee then approved without a vote a draft decision proposed by Guatemala entitled "Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization" (document A/C.6/53/L.2). Under its provisions, the Chairman of the Committee is requested to transmit the observations of the International Court of Justice contained in document A/53/326 to the Fifth Committee (Administrative and Budgetary) without delay for its possible consideration as they related closely to agenda item 113 -- the 1998-1999 biennial budget -- of the current General Assembly session. The Court states in its observations that it requires additional resources to meet its increasing workload.

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