LEGAL COMMITTEE HEARS CALL FOR CREATION OF POST OF HIGH COMMISSIONER FOR ENVIRONMENT

Press Release
GA/L/3082

LEGAL COMMITTEE HEARS CALL FOR CREATION OF POST OF HIGH COMMISSIONER FOR ENVIRONMENT

Chile this morning called for the creation of a high commissioner for the environment, empowered to act in cases of transboundary harm of a global nature such as those affecting ecosystems, as the Sixth Committee (Legal) continued consideration of the report of the International Law Commission. At its 1998 session, the Commission completed the first reading of draft articles on the question of prevention of transboundary damage.

The representative of Chile, noting that damage was often not limited to a State but extended into common areas, said the Commission should explore the idea of creating an entity empowered to act on behalf of the international community in such situations, such as a high commissioner for the environment.

The representative of the United States said it should be recognized that the draft articles seemed premised upon a highly centralized State with comprehensive regulatory powers. It would be difficult or even impossible to implement those principles effectively in federal States like the United States where regulatory authority was shared, he added.

The institution of diplomatic protection should not be assimilated into human rights protection, although they might overlap in certain cases, the representative of Norway (speaking on behalf of the Nordic countries) said, referring to another chapter in the Commission's report. He said diplomatic protection was ripe for codification and had great practical significance.

Statements were also made by the representatives of the United Kingdom, Japan, France and China.

The Committee will meet again at 10 a.m. tomorrow, 28 October, to continue its consideration of the report of the International Law Commission.

Committee Work Programme

The Sixth Committee (Legal) met this morning to continue 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.

In addition, 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. (For more details about the report, see Press Release GA/L/3081 of 26 October.)

Statements

HANS WILHELM LONGVA (Norway), speaking on behalf of the Nordic countries, said that the topic of diplomatic protection was ripe for codification and had great practical significance. Furthermore, there was already a sound body of law on the topic. There should be no doubt that diplomatic protection was a sovereign prerogative of the State of nationality of the person concerned, as a subject of international law. For all practical purposes, the person concerned was to be considered as a beneficiary of international law. Moreover, there should be no doubt that the institution of diplomatic protection could not be assimilated into human rights, although they might overlap in certain cases.

The Nordic countries believed it was important to focus on practical needs rather than theoretical debates, he said, adding that they would like to see, as an end result, a guide for practitioners. Issues deserving further attention included: questions related to dual nationality of individuals, including with regard to the abduction of children; and diplomatic protection of legal persons.

Concerning the issue of nationality in relation to the succession of States, he shared the hesitation as to the possibility of enlarging the topic beyond the context of State succession and noted that the overlap with the question of diplomatic protection would be considerable in that case. A more limited study was warranted if it answered practical problems confronted by States in that field.

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FRANKLIN BERMAN (United Kingdom) said the title of the Commission's draft articles on International Liability for Injurious Consequences should be reviewed in the light of the draft texts themselves, to bring out more clearly the underlying notion of environmental harm inherent in the reference to damage caused by physical consequences. The drafts should also be oriented towards practical application and not unduly driven by theoretical principle.

On the topic of diplomatic protection, he said it would not be codification at all but a radical reformulation, if the Commission's Special Rapporteur considered that diplomatic protection should now be recognized not as an inter-State institution of international law, but as an arrangement under which the State acted as agent for its injured national. It was hard to see what benefit would flow from that view. The United Kingdom would like the Commission to pursue the points agreed by its working group on the topic that the customary law approach should form the basis for its work.

The United Kingdom encouraged the Commission to focus its preliminary studies on "unilateral acts of States" on the main practical problems that needed to be examined, he said. On "State responsibility", he said the draft articles on the topic were "prone to weaknesses of both excessive generality and misplaced specificity". Detailed regulations might be preferable, he added.

CHUSEI YAMADA (Japan) said it was regrettable that the Commission could not continue the experiment of split sessions next year due to financial constraints. He expressed the hope that appropriate funding for that practice would be secured.

Referring to the issue of international liability for injurious consequences arising out of acts not prohibited by international law, he said the draft articles presented by the Commission on prevention of transboundary damage were generally acceptable. It was important to maintain the momentum on the topic. He urged Governments to submit their comments expeditiously, adding that the obligation of prevention was that of conduct and not that of result. Non-compliance with the obligation therefore belonged to the regime of State responsibility. On the other hand, international liability for a significant transboundary harm arising from certain activities was separate from the regime of State responsibility.

On the issue of diplomatic protection, he said that the legal personality of individuals under international law, though limited, had been gradually recognized, particularly in some international conventions on human rights. Diplomatic protection was an old institution firmly established under general international law. Nevertheless, in attempting to codify specific procedures for a State to exercise it, the recent development of international law regarding the legal status of individuals would have to be taken into account.

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FRANCISCO ORREGO (Chile), speaking on the issue of international liability for injurious consequences arising out of acts not prohibited by international law, said the criteria of prevention did not preclude responsibility arising from certain types of acts. There was a clear link between prevention and responsibility in established law, as in the cases of the polluter pays principle and the concept of shared but differentiated responsibility. While it was necessary to elaborate further criteria, there should be no attempt for an exhaustive definition, as such an effort on the international level would involve great complexities.

Transboundary harm was not limited to damage to a State, but rather often extended into wider common areas and was of a global nature, as for example, when an ecosystem was affected, he said. In noting that there was a need for an entity to be empowered to act on behalf of the international community in such situations, he suggested that the International Law Commission explore the idea of creating such an entity as, for example, a high commissioner for the environment. He further suggested that prevention be coupled with response actions. In that context, it would be necessary to include operators. Also, criteria should be established to evaluate environmental damage. Such endeavours would have an influence in determining responsibility.

Concerning diplomatic protection, he said the fundamental question was who was entitled to exercise that right. Clearly, the exercise of diplomatic protection was the prerogative of the State, but the right that was claimed to that exercise was that of the individual. A fundamental change had occurred over the past 30 or 40 years. The issue should not be examined only in light of customary law but consideration should also be given to relevant treaties and current practice. A look at practice today, as compared to the past, showed that it was more frequent those days for the State to be acting on behalf of an individual, or as agent for an individual. He cited several examples of the shift in practice, as when claims were made for non-nationals and flexible rules concerning dual nationality. Furthermore, there was now protection of individual shareholders in a foreign company, which had previously been precluded by earlier rulings of the International Court of Justice.

RONNY ABRAHAM (France) said the implementation of diplomatic protection raised difficult questions. In the view of his delegation, the traditional concept of State protection for nationals should be pursued. In exercising that right, a State took several things into consideration, including foreign policy matters. The Commission should not incorporate human rights issues into diplomatic protection. There should be a separate hierarchy for the two institutions. It was necessary for the Commission to study unlawful acts of States, but that should not cover the nature of the rights violated.

The question of preconditions for diplomatic protection should also be looked into, he said. It must be demonstrated and proved that an injury had

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been caused. The issue of reparations should be studied for the purposes of diplomatic protection. A study could also be made of the extension of the machinery of diplomatic protection to international organizations and their agents. The Commission's Special Rapporteur should continue its work along the lines proposed by the Commission's working group on diplomatic protection.

YIN YUBIAO (China), addressing the topic of international liability for injurious consequences, said that to effectively protect the environment, the aim should be to adopt articles on prevention of hazardous activities in conformity with current international environmental law. A provision (article 3) of the draft articles which dealt with freedom of action of States should not be deleted. The article was closely related to others. It required that States not only guarantee not to cause transboundary damage, but adopt all necessary measures to prevent or reduce them. Another drawback for the package was the absence of articles embodying principles which paid attention to special conditions of the developing world. Global partnership should be promoted to enable developing countries to fulfil their duties of preventing transboundary damage.

To foster such partnership, China called for measures such as promotion of technology transfer on equitable terms, training and a creation of a fund for financial support.

DAVID R. ANDREWS (United States) said the United States welcomed the Commission's initiative to redirect its work on international liability for injurious consequences. Real progress regarding measures to avoid harm might be less controversial and easier to attain than progress in some other areas the Commission had previously wrestled with under that topic. The new focus might therefore help to make that part of the Commission's work more acceptable and useful to a broad community of States. It should be recognized that the draft articles seemed premised upon a highly centralized State with comprehensive regulatory powers. It would be difficult or even impossible to implement those principles effectively in federal States like the United States where regulatory authority was shared.

Diplomatic protection was a well-established and useful institution, he said, and added that it was made use of in United States' dealings with other countries. The institution could provide an effective, generally understood mechanism for clarifying and enhancing compliance with international law. The United States urged the Commission to broaden its work on the topic of unilateral acts of States. The extension of such a study in future to cover unilateral acts of international organizations should be limited in scope, he added.

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The Commission's work on State responsibility was the most important and difficult on its agenda, he said, and added that the United States endorsed changes made by the Commission in some articles which underscored that international law governed in the event of any conflict with domestic law. With regard to reservations to treaties, the United States agreed that the Vienna Convention on the Law of Treaties created a workable general regime for reservations applicable to all types of treaties. It also agreed that the Vienna regime did not require major revision, and that the Commission's work should therefore focus on filling in the gaps and areas of possible ambiguity.

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