RELATIONSHIP BETWEEN HUMAN RIGHTS AND DIPLOMATIC PROTECTION DISCUSSED AS LEGAL COMMITTEE CONSIDERS INTERNATIONAL LAW COMMISSION REPORT

Press Release
GA/L/3083

RELATIONSHIP BETWEEN HUMAN RIGHTS AND DIPLOMATIC PROTECTION DISCUSSED AS LEGAL COMMITTEE CONSIDERS INTERNATIONAL LAW COMMISSION REPORT

The relationship between human rights and diplomatic protection and international liabilities and obligations in transboundary harm again dominated debate on the work of the International Law Commission, as the Sixth Committee (Legal) continued its consideration of the Commission's report on its 1998 session.

The representative of Austria said human rights and diplomatic protection should not be specifically linked. The Commission must be guided by the fact that the international norms of human rights and of diplomatic protection fulfilled overlapping, but intrinsically different public order functions. Austria seriously doubted that the perspective of "diplomatic protection as a human right" could be based on existing international law or would become part of the international legal order in the immediate future.

The relationship between diplomatic protection and human rights should be dealt with separately, the representative of Indonesia said. The two institutions could not be marginalized by the consideration of either one and should be accorded paramount importance. Indonesia supported the enhancing of mutually beneficial cooperation between the International Law Commission and other legal bodies, especially the Asian-African Consultative Committee. Their joint endeavours had largely contributed to a better understanding of the scope of the Commission's work.

The representative of China said States should have the right to protect their nationals from injuries suffered from wrongful acts of other States. The argument that the individual was regarded as the subject of international law was untenable. The role of States in exercising diplomatic protection could not be denied, he added.

Addressing the issue of international liability, the representative of Israel said State responsibility and civil liability, when a private operator was involved, would not suffice to protect legitimate environmental interests. The duty of prevention should be treated as an obligation of conduct, inspired by a detailed code of conduct applicable to all countries.

Sixth Committee - 1a - Press Release GA/L/3083 15th Meeting (AM) 28 October 1998

Also this morning, Justice Stephen Schwebel, President of the International Court of Justice, in a brief statement, noted that the level of the Committee's discussion of the report of the International Law Commission was very high. He saw the Court, the Commission and the Committee as well as the General Assembly as "colleagues and workers in the same vineyard", nurturing the development and effectiveness of international law.

Jargalsaikhany Enkhsaikhan (Mongolia), Chairman of the Committee, welcoming Justice Schwebel, recalled that he used to be a member of the Commission and that he was familiar with its work. He welcomed the opportunity for Committee members to have a dialogue with him.

Statements were also made by the representatives of Venezuela, Malaysia, Mongolia, Ethiopia, Czech Republic, Italy, Germany, India and Argentina.

The Committee will meet again at 10 a.m. tomorrow, 29 October, to continue its consideration of the report of the International Law Commission on the work of its 1998 session.

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). The Committee has been focusing mainly on draft articles with commentaries on prevention of transboundary damage from hazardous activities and diplomatic protection. (For more details about the Commission's report, see Press Release GA/L/3081 of 26 October).

Statements

FRANZ CEDE (Austria) endorsed the Commission's decision to hold a single and a split session at Geneva in 1999 and 2000, respectively. It might be questioned, he said, whether the Commission was right in choosing the term "risk of causing significant transboundary harm", instead of "significant risk of transboundary harm", as one of the three defining criteria of the topic.

The Commission's choice unnecessarily blurred "the exact legal interrelationship of the crucial elements of risk, probability and consequence of the injurious event", he said. The Commission's related assumption that the core concern of the prevention topic was "future as against present (ongoing) harm was not fully convincing" and seemed to reflect a basic conceptual weakness in the Commission's approach. The draft articles and the Commission's commentary suggested that a State's obligation to prevent "significant transboundary harm" that was "bound to occur" might be discharged by the State alternatively, either by taking measures to prevent or by minimizing the risk of such harm.

His delegation believed that failure to comply with any of the duties of prevention as set out in the draft articles would be covered by the law of State responsibility. It did not see the need for the Commission to address issues related to the civil liability of the private sector involved in the given context. He reminded the Commission not to lose sight of its originally conceived task of elaborating rules on liability proper. Its work on prevention could and should make a useful contribution to clarifying and strengthening the international law girding sustainable development.

On the question of human rights and diplomatic protection, his delegation shared the view that the two institutions should not be specifically linked in any draft articles on diplomatic protection. The Commission must be guided by the fact that the international norms of human rights and of diplomatic protection fulfilled overlapping, but intrinsically different public order functions. Austria seriously doubted that the perspective of "diplomatic protection as a human right" could be based on existing international law or would become part of the international legal order in the immediate future.

Sixth Committee - 3 - Press Release GA/L/3083 15th Meeting (AM) 28 October 1998

As regards the topic of unilateral acts of States, he said the Commission should focus on unilateral declarations to the exclusion of other unilateral expressions of the will of States. Such a limitation on the scope of the topic would simplify enormously the Commission's work and could ensure its early and successful conclusion, which should take the form of a draft "guide of practice" for States rather than of a draft convention. Austria agreed with the general structure of the draft articles on State responsibility.

ALAN BAKER (Israel) said he agreed with the decision of the Commission to separate the regime of prevention from the regime of liability. Nevertheless, State responsibility and civil liability, when a private operator was involved, would not suffice to protect legitimate environmental interests. The duty of prevention should be treated as an obligation of conduct, inspired by a detailed code of conduct applicable to all countries.

The draft articles need not necessarily take the form of a convention, he said. The drawing up of guidelines could be taken into consideration. He emphasized the need for an expeditious mechanism for settling any disputes arising from interpretation or application of the provisions, and in particular, the assessment of the obligation of conduct. He agreed with the report commentary that prevention should be the preferred policy, because compensation in case of harm often could not restore the situation prevailing prior to the event or accident.

The customary concept of diplomatic protection might entail some limitations on the extent to which it may be extended to an individual, as a result of the unavoidable primacy of the State's discretion as to whether and to what extent to adopt an individual's claim, he said. According to the circumstances and the character of the case involved, the concept of diplomatic protection could take on a secondary nature to other aspects of foreign policy which might be considered more important and might justify overriding the relative importance of diplomatic protection.

As the world was witnessing an increasing number of instances in which the individual was treated as a direct beneficiary of international law, he agreed with the recommendation to further examine the effects of such developments in the light of State practice. Describing it as a point worthy of consideration by the Commission, he said that in some cases an individual's claim might be wrong or even unfounded in international law. Thus, if diplomatic protection was not at a State's discretion, an individual could put a State in an unnecessary and eventually even futile position.

NORMAN MONAGAS-LESSEUR (Venezuela) supported the efforts of the Commission on the issue of transboundary harm. He expressed the hope that the General Assembly would adopt a resolution requesting States to comment on the project so that it might be concluded. It was best to have the draft articles take the format of a framework convention. The scope of the project was

Sixth Committee - 4 - Press Release GA/L/3083 15th Meeting (AM) 28 October 1998

rightly limited to certain activities not prohibited by international law, which ran the risk of causing significant transboundary harm.

He shared the view that it was best to deal with the matter in general terms and that it would not be productive to enter into enumerations which might prove a difficult and uncertain task. He agreed that the criteria for obligation should be considered one of conduct and not one of result. In that way, a State would be obligated to prevent the risk of transboundary damage.

JOHN O'HARA (Malaysia), referring to prevention of transboundary damage from hazardous activities, said he agreed with the Commission's stand that prevention, as a policy, was better than cure. While there was merit to the concept that evaluation of the adverse impact of transboundary harm should not only be limited to the effects on persons and property, but should also cover the impact on the environment in other States, that concept should in no way be interpreted as to deprive a State of its sovereign right to develop the natural resources necessary for its economic well-being.

Turning to diplomatic protection, he said many of the aspects of international law relating to that topic had taken shape with the spread of reformative ideas originating from the West. The effort to develop progressive universal acceptance of laws on the topic should avoid undue reliance on outdated materials and ideas. There was also a need to take into account the views of the developing world. Since an individual was linked by nationality to a State, it became the State's sovereign prerogative to protect that individual's rights and interests.

The relationship of unilateral acts to the sources of international law was one of the more important matters taken up by the Commission, he said. Many contemporary authors argued that unilateral acts could not be taken to be one of the sources of international law. However, depending upon their nature and purpose, unilateral acts could be included. Much work remained to be done by the Commission on the question.

MUTHIA Z. REZA (Indonesia) said her delegation agreed with the widely-held view, as stated in the Commission's report, that "prevention was better than cure". She pointed out, however, that the drawing up of a comprehensive list of all hazardous activities might not, at present, be beneficial due to the rapidly changing innovations of technology with its potential consequences. She called for enhanced cooperation with developing countries in meeting their needs in environmental protection. International organizations could also play an important role in that respect.

On the topic of diplomatic protection, she said its exercise was the sovereign prerogative of States, parallel to the time-honoured tenets of sovereignty and territorial integrity of States. The relationship between diplomatic protection and human rights should be dealt with separately.

Sixth Committee - 5 - Press Release GA/L/3083 15th Meeting (AM) 28 October 1998

Diplomatic protection could not be marginalized by the consideration of human rights and vice-versa as those questions ought to be accorded paramount importance.

Indonesia supported the enhancing of mutually beneficial cooperation between the International Law Commission and other legal bodies, especially the Asian-African Consultative Committee, she said. Their joint endeavours had largely contributed to a better understanding of the scope of the work undertaken by the Commission, as well as familiarization with the legal work of member States of the Movement of Non-Aligned Countries. She also underscored the importance of promoting international law through the convening of international law seminars, especially for students of developing countries.

RAVJAA MOUNKHOU (Mongolia), on the issue of transboundary damage, said that if prevention were to be the focus, the draft articles seemed to meet their intended objective. The definition of their scope was acceptable. The importance of good faith cooperation among States in preventing transboundary or minimizing the risk of it, could not be overemphasized. He welcomed the draft article which required States to provide information, not only to their own public, but also to other States, saying it reflected new trends in international law.

He expressed doubt about the effectiveness of separating the regime of prevention from that of liability, especially in cases of transboundary damage from hazardous activities. He preferred a broader approach to international obligations that would also cover liability.

SEIFESELASSIE LEMMA (Ethiopia) said the topic of international liability for injurious consequences arising out of acts not prohibited by international law was controversial. The fact that its discussion followed the adoption of the United Nations Convention on the Non-Navigational Uses of International Water Courses encumbered its consideration further.

His country, like many others, had refrained from subscribing to the instrument mainly because the "no harm" element had been given undue prominence in the Convention, he said. The topic under consideration in some respect trespassed into the domain of the Convention on Non-Navigational Uses of International Watercourses. Ethiopia was concerned that both instruments were destined to influence the interpretation of each other. He noted that the phrase "significant harm" was used in the draft articles on prevention of transboundary damage in the same way it was employed in the Convention.

On the topic of diplomatic protection, he said the title did not seem to represent possible contents of the legal instrument to be developed. The term connoted the traditional State-to-State relations and appeared to be easily confused with the law on diplomatic relations, which had the protection of diplomatic rights and duties as its main purpose. He therefore suggested a

Sixth Committee - 6 - Press Release GA/L/3083 15th Meeting (AM) 28 October 1998

modification of the title. The relationship between State responsibility and the topic under consideration needed to be further elaborated because of the large common ground and grey area that existed between the two concepts. Human rights and diplomatic protection were very much interrelated, and constituted a significant share of issues that fell under the topic of diplomatic protection.

YIN YUBIAO (China), also addressing the topic of diplomatic protection, said States should have the right to concern themselves with whether their nationals were being fairly treated. They had the right to protect their nationals from injuries suffered from wrongful acts of other States. The argument that the individual was regarded as the subject of international law was untenable. The role of States in exercising diplomatic protection could not be denied.

On the question of primary and secondary rules, he said diplomatic protection mainly belonged to the latter. Setting those rules should also depend on the nature of specific questions. Flexibility was also needed. Apart from peaceful settlement of disputes through negotiation, mediation, good offices, arbitration and judicial settlement, consideration should also be given to other measures permitted by international law.

MILAN BERANEK (Czech Republic) supported the decision of the Commission to split the topic of international liability and to deal first with prevention issues and later, if at all, with the liability part. The scope of application seemed adequately defined by setting a threshold applying to both risk and harm. Prevention was appropriately construed as an obligation of conduct, and one fundamentally based not on an absolute conception of minimization of risks whose limits would be very difficult to grasp, but on the crucial requirement of equitable balance of interests of the States concerned. He expressed regret, though, that draft article 3 had no reference to the balancing of interests of States concerned.

Concerning certain specific issues on breach of or non-compliance with obligations, he said they should be dealt with under the topic of State responsibility and not within the framework of prevention. Further, he did not consider a model law to be the appropriate form for the eventual outcome of the Commission's work on the subject.

UMBERTO LEANZA (Italy) said the draft articles were commendable for their logic, completeness and moderation. The Commission was right to separate prevention and reparation in the case of transboundary damage. Prevention was the best system of protection, he said, stressing its importance as an objective of modern international law. He noted the need for equitable balance of interests in measures to prevent transboundary harm as stipulated in draft article 12. States had an obligation under international law to limit or prevent transboundary damage.

Sixth Committee - 7 - Press Release GA/L/3083 15th Meeting (AM) 28 October 1998

On the question of diplomatic protection, he said the preliminary report of the Commission's Special Rapporteur was valuable. It was the right of States to ensure that their citizens were treated according to international standards. The Commission should approach the issue of diplomatic protection and human rights with caution. A hierarchy should be established between the two institutions. His delegation believed that international customary law should be the approach of the Commission.

GERD WESTDICKENBERG (Germany) said the decision by the Commission to deal first with the issue of prevention of transboundary damage from hazardous activities had been a wise one. The draft articles balanced well the economic interests of States of origin and of States likely to be affected. He agreed with the core idea in one of the draft articles that it was the duty of the State of origin to notify those States that were likely to be affected by the planned activity. The draft articles embarked upon a field of international law still in the process of further development and possibly rapid progress. Thus, it was necessary to proceed with caution.

The provision on dispute settlement was a useful amendment to the earlier draft, he said. It remained to be seen, however, whether the provision would be sufficient or whether there should be further work on the dispute settlement procedure. Turning to the issue of State responsibility, he said the Commission had achieved precise and clear definitions on which conduct could be considered as attributable to a State as act of the State.

DALIP LAHIRI (India) said the issue of prevention of transboundary damage was one with far-reaching implications. The controversy that had beset the Convention on Navigational Uses of International Watercourses was a reminder about the need to make haste slowly. Any consideration of prevention and international liability for transboundary damage should take place within a framework that acknowledged the developmental imperatives upon which there was international consensus as well as on the fundamental premise of common but differentiated responsibility.

He expressed concern that no attempt to specifically define actions which constituted hazardous activities had been made. As the draft stood, it could include a wide range of activities crucial for development. He was also concerned at the lack of precision in defining terms such as "risk of causing significant transboundary harm". He acknowledged that the Commission had sought to address the issue of equity and balance of interest in draft article 12, particularly the need to take into account the importance of "activity including its overall socio-economic and technical advantages for the State of origin". However, much more needed to be done in the Commission to deliberate on and expand on that concept.

He also expressed reservations with regard to the universal application of the principle of information to the public and the principle of non-discrimination referred to in another draft article. He believed that the

Sixth Committee - 8 - Press Release GA/L/3083 15th Meeting (AM) 28 October 1998

concept of "due diligence" was not susceptible for codification, as factors to be considered in the context of significant harm of a particular nature greatly differed from case to case. Many of the concepts and ideas reflected in the draft articles did not yet constitute settled or highly evolved principles of international law, he said, recommending their further study and deliberation.

ORLANDO REBAGLIATI (Argentina) on the issue of State responsibility said the changes recommended by the Commission were clearly an improvement. He noted that in the first reading of the draft articles, Argentina had recommended a review of the exclusion of damage as an element of an illegal international act. It had also expressed some doubt about not adequately describing the distinction between "crimes" and "delicts". While some concerns had been taken into account in the latest report, he again stressed the need to include, as a fundamental norm, damage as a wrongful act. He further expressed doubts about the advisability of legislating on countermeasures.

It was necessary to clarify and establish the consequences according to international law for activities that caused significant transboundary damage, even when the State of origin had observed all the norms for prevention, he said. An obligation to remedy remained in those cases. Governing norms should correspond to certain principles. Even in cases where there was due diligence, it did not remove liability.

Concerning nationality and succession of State, he said it should not be forgotten that the process of decolonization was not yet complete and that the matter should be resolved taking that into account. The treatment of the subject of diplomatic protection could not be separated from the topic of succession of State either, as there was a connection between them.

The relationship between the Commission and the International Court of Justice should be further developed, he said. The Commission would be further enriched if it took into account legal work being done by similar institutions of a regional nature.

* *** *