SIXTH COMMITTEE CONTINUES CONSIDERING REPORT OF INTERNATIONAL LAW COMMISSION

29 October 1998

Press Release
GA/L/3084

SIXTH COMMITTEE CONTINUES CONSIDERING REPORT OF INTERNATIONAL LAW COMMISSION

19981029 Legal Committee Takes Up Unilateral Acts of States, Nationality in Relation to Succession and Reservations to Treaties

The Sixth Committee this morning began discussion of questions related to unilateral acts of States, nationality in relation to the succession of States and reservations to treaties, as it continued its consideration of the report of the International Law Commission on the work of its fiftieth session.

During its session, the Commission concentrated mainly on the scope of unilateral acts of States, the definition and elements of such acts, and the final form of its future work on the subject. With regard to nationality issues, it established a working group to consider the possible orientation to be given to the question of nationality of legal persons. The Commission adopted seven draft guidelines on the question of reservations to treaties, including their definition, object of reservations and instances in which they might be formulated.

Joao Clemente Soares, Chairman of the Commission, introduced the second part of the report which concerned those subjects. Statements on the topics were made by the representatives of France and the Czech Republic.

The representatives of Bangladesh, Mexico, Brazil, Republic of Korea, Bulgaria, New Zealand, Malawi, Singapore and Uruguay, in their statements, dwelt on subjects in the first part of the Commission's report covering mainly draft articles on prevention of transboundary damage from hazardous activities and diplomatic protection.

Also this morning, the representative of the Ukraine introduced a draft resolution on the implementation of the provisions of the Charter of the United Nations related to assistance to third States affected by the application of sanctions under Chapter VII of the Charter. Co-sponsors of the draft text are Bulgaria and Russian Federation.

Among its provisions, the draft would have the General Assembly decide to establish a working group of the Sixth Committee during its fifty-fourth session to consider further progress in elaboration of effective measures for the implementation of those provisions.

The Sixth Committee will meet again at 3 p.m. today to continue 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 to 12 June and New York 27 July to 14 August) (document A/53/10). The Committee has been focusing mainly on the Committee's work on draft articles on prevention of transboundary damage from hazardous activities and issues concerning diplomatic protection. (For more details on the Commission's report, see Press Release GA/L/3081 of 26 October 1998).

Introduction of draft resolution

OLEH V. HERASYMENKO (Ukraine) introduced the draft resolution entitled "Implementation of the provisions of the Charter of the United Nations related to assistance to third States affected by the application of sanctions" (document A/C.6/53/L.3) on behalf of Bulgaria, Russian Federation, and his own country.

He said the text was to a large extent based on last year's resolution A/52/162. The sponsors believed that a working group would be the most appropriate forum for considering and analyzing the entirety of information, views and opinions on the subject to be summarized in the Secretary-General's report based on inputs received from governments, the Charter Committee, the Economic and Social Council and relevant international organizations. He noted that the non-establishment of the working group during the current session of the General Assembly should not be viewed as a precedent for subsequent sessions of the Assembly.

By the draft text, the General Assembly would decide to establish a working group within the Sixth Committee at its fifty-fourth session to consider further progress in elaboration of effective measures to implement Charter provisions related to assistance to third countries affected by the application of sanctions under Chapter VII of the Charter.

The Assembly would ask the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, at its 1999 session, to continue to consider on a priority basis the question of the implementation of those Charter provisions. The Special Committee would take into account all related reports of the Secretary-General, in particular the most recent one on the meeting of the ad hoc expert group which considered the subject, as well as relevant General Assembly resolutions and the present one.

By other terms of the draft text, the Secretary-General would be asked to pursue implementation of relevant General Assembly resolutions (50/51, 51/208 and 52/162) and to ensure that the competent Secretariat units develop the capacity and guidelines to coordinate information about technical assistance available to third States. The units must continue to develop possible methodology for assessing the adverse consequences actually incurred

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by those States and to initiate action to explore innovative and practical measures to assist them.

The Secretary-General would also be asked to seek the views of governments and to hold appropriate consultations with the relevant international organizations on the report of the ad hoc expert group meeting and on exploring measures of international assistance to those third countries.

By other terms of the draft, the Assembly would renew its invitation to the Security Council to consider the establishment of further mechanisms or appropriate procedures for consultations with the affected third States as provided for under Article 50 of the Charter on resolving their problems. The Council was expected to consider appropriate ways and means for increasing the effectiveness of its methods and procedures applied in the consideration of requests by the affected States.

The Assembly would also welcome once again the further measures taken by the Security Council to increase the effectiveness and transparency of its sanctions committees, and would invite it to implement them. It would strongly recommend that the Council continue its efforts to further enhance the functioning of the sanctions committees, to streamline their work procedures and to facilitate access to them by representatives of States confronted with special economic problems arising from the carrying out of sanctions.

Also by the draft text, the Assembly would reaffirm its own important role, that of the Economic and Social Council and the Committee for Programme and Coordination in appropriately mobilizing and monitoring the economic assistance efforts by the international community and the United Nations system to those third States. The Economic and Social Council would be asked to consider at its 1999 substantive session the report of the ad hoc expert group meeting.

Statements

A.K.H. MORSHED (Bangladesh) said the draft had some remarkable aspects. The emphasis on cooperation as the underlying principle of the regime of prevention was most welcome. The institutionalization of notification and consultations, and the identification of a balance of interests represented notable contributions to the subject. The introduction of the idea of public consultation was a significant advance. The Commission's approach was constructive and practical. His delegation considered that the Commission had in a considerably short time erected an elegant structure of draft articles which could form the basis of codification.

The adoption of the principle of due diligence had certain implications, as it had an objective content which was traceable to the fact that hazardous activities carried the seeds of their physical consequences, he said. They

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were inherent in those activities and processes so that the consequences could be foreseen with a degree of certitude and precision. His delegation believed that considerations which governed liability were not identical with those which governed the measure of damages. If a State permitted hazardous activities on its territory, it must be presumed that it would be able to take care of the potential consequences. That presumption was applicable irrespective of the level of development of the State concerned.

BERNARDO SEPULVEDA (Mexico) said that in general the document on transboundary harm was balanced and comprehensive and would facilitate a rapid conclusion of the matter. Nevertheless, the emphasis on prevention should not be a departure from the original objectives. The document would be inadequate and would limit the scope of the project if, in dealing with the issue, the question of liability was not included. One could not divorce the duties imposed by prevention from the potential consequences of non-compliance with norms of prevention. There was unquestionably a link between cause and effect, activity and damage caused. Prevention fell within the scope of liability. The separation would weaken the concept of prevention.

It was essential to establish norms to govern the consequences of non-compliance, whether or not such acts caused harm, he said. Also, separation of the two concepts would prematurely determine the consequences. In principle, Mexico believed the draft articles should take the form of a Convention. A model law or framework convention would not provide the same certainty.

Turning to the topic of diplomatic protection, he said customary law was sufficient to guide the work of the Commission. Harm suffered by a national of the State was a necessary condition to invoke a claim of diplomatic protection by the State. Further consideration of the topic should take into account the fact that diplomatic protection was a right incumbent on a State which had full discretion in its exercise. There should be more emphasis on the role of exhaustion of domestic remedies. At this point, that aspect had not been given the attention it deserved. Finally, it was necessary to maintain a clear separation between protection of international human rights and diplomatic protection. The two should not be linked nor confused.

ANTONIO DE AGUIAR PATRIOTA (Brazil), referring to the issue of transboundary harm, said Brazil agreed with a regime on prevention of damage liability. On diplomatic protection, he considered the approach followed by the Commission a satisfactory one. Describing the matter as one of the most difficult before the Commission, he encouraged the Commission to continue to carefully examine the issue of functional protection. According to traditional doctrine, diplomatic protection pertained to the State, not to the individual. The recognition of the rights of the individual at the international level should be seen as related to another strand of international law. He cautioned against blurring the distinction between the two concepts.

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He would inform the Commission shortly of national legislation, including decisions by domestic courts and State practice, relevant to diplomatic protection, as further inputs for the Commission's consideration. Brazil had recently published the "Gilberto Amado Memorial Lectures" in association with the celebration of the 50 years of work of the International Law Commission. The volume was available at their Mission and would soon be made available on their world wide web site.

SEUNG-HOH CHOI (Republic of Korea) hoped the Commission's draft articles on "prevention of transboundary damages from hazardous activities" would draw attention and efforts from governments, non-governmental organizations and the legal community. An extensive examination of the set of legal principles relating to separate liability and preventive regimes was required. Once adopted, he said the objective of the draft articles would be part of a very significant legal instrument regulating profoundly diverse national or individual activities, ranging from watercourse civil work to a nuclear activity, or land-based oil production, or space activities.

He said that because of its "catch-all" scope, the draft articles should be part of a framework convention rather than a convention or a model law. On transboundary harm, he said the word "potentially" should be added before the phrase "hazardous activities" as the distinction might have different legal implications in liability and state responsibility regimes.

RAIKO RAICHEV (Bulgaria), speaking on transboundary harm, said that the draft articles on prevention reflected the main principles of procedure and content of the convention. Draft article 3, the most significant article, imposed upon the State a duty to take all necessary measures to prevent or minimize the risk of significant transboundary harm. The issues of minimizing the effect of harm that had occurred and of minimizing the risk of transboundary harm were closely interrelated. It was important to not only prevent potential damage, but also to mitigate its effect when it occurred.

That duty should be treated as an obligation of conduct, that is, one of due diligence, he continued. He supported the inclusion of a provision dealing with the consequences of operators' failure to conform with requirements. He shared the view that the question of dispute settlement - depended upon the legal format of the draft articles.

Introduction of Part 2 of Commission's report

JOAO CLEMENYE SOARES, Chairman of the International Law Commission, introduced Part 2 of the Commission's report which dealt with unilateral acts of States; nationality in relation to the succession of States; reservations to treaties and other decisions and conclusions of the Commission.

He drew attention to unilateral acts to be excluded from the study as outlined by the special rapporteur on the subject: unilateral political acts, unilateral legal acts of international organizations, and those attitudes,

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acts and conduct of States which, though voluntary, were not performed with the intention of producing specific effects in international law. Other unilateral acts included those of States which gave rise to international responsibility, a topic which the Commission was already considering.

The Commission's discussion of the topic had focused on its scope, definition of elements of unilateral acts and on the final form of the Commission's work on it, he said. As a result of its discussion, the Commission decided to reconvene its working group on Unilateral Acts of States, and the group's report was reflected in the Commission's report.

He said the special rapporteur was requested to submit in his future report draft articles on the definition of unilateral acts and the scope of the draft articles and to proceed further with the examination of the topic, focusing on aspects concerning the elaboration and conditions of validity of the unilateral acts of States. The Commission would welcome the Sixth Committee's views on the subject, including whether the scope of the topic should be limited to declarations, as proposed by the special rapporteur in his first report, or whether it should be broader and also encompass other unilateral expressions of the will of the State.

On the question of nationality in relation to the succession of States, he said it was very important that the Commission receive the views of States on the matter. In the absence of any positive comments from States, he said the Commission would have to conclude that States were not interested in the study of the second part of the topic. On the topic of Reservations to treaties, he said the Commission adopted seven draft articles on various questions pertaining to the wider issue of the definition, together with commentaries which provided the necessary clarifications.

VICTORIA HALLUM (New Zealand) speaking on transboundary harm, said principles concerning prevention could not be determined in isolation from the principles concerning liability. She urged the General Assembly and the International Law Commission to reconsider the decision to pursue the two aspects of the topic separately. By considering liability regimes in conjunction with prevention regimes, States had the opportunity to tailor both regimes to the nature and extent of the risk of a particular activity, whether transboundary harm resulted from a failure to take the agreed prevention measures or the fact that the measures turned out to be inadequate.

It was well settled, she said, that a breach of State's obligation to use due diligence not to cause harm to other States was an internationally wrongful act. To the extent that the draft articles on prevention codified that obligation, their breach must give rise to State responsibility for wrongfulness. She favoured the incorporation of articles on both prevention and liability in a convention which would itself lay down residual rules of international law, but would allow States, by agreement, to add or substitute more detailed regimes to govern particular activities as between or among themselves.

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RONNY ABRAHAM (France) said the definition of unilateral acts of States proposed by the Commission seemed to provide an interesting basis for further work. The question was whether an act by a State was performed to create a legal relationship, particularly an international legal obligation for the State itself, vis-à-vis one of several States which would not participate in working out a declaration in question. It would also be necessary to know whether it was useless that the latter expressly accepted the consequences of the act or signified their acceptance by subsequent behaviour.

He felt that several proposed articles on nationality in relation to the succession of States were out of place. On the question of choice of nationality, he said individuals should not have absolute freedom to choose. States should have the final say.

TREVOR CHIMIMBA (Malawi) said it was pleasing to note that after 20 years the Commission had completed, on first reading, a set of draft articles on prevention of transboundary harm. He had no doubt that a narrowing of the subject had helped to make it more manageable. However, the relationship with State responsibility demanded more clarification. Also, while he appreciated the Commission's preference not to attempt at this stage to spell out the activities to which the draft articles applied, such a list and a final review of what continued to be a misleading title of the topic might prove helpful in allaying some of the conceptual difficulties that still lingered.

The question of equitable balance of interests might need to be further explored vis-à-vis a regime of liability, he said. It might be easier to wait until the entire project was completed before taking a decision on the form the draft articles should take as the most suitable form of a dispute settlement procedure.

On diplomatic protection, he agreed that the customary law approach should form the basis for the topic. Any contemporary study of the topic should take careful account of the evolution of human rights. There were many similarities in the espousal of claims under the two regimes, and a study of the impact might prove worthwhile.

MILAN BERANEK (Czech Republic), speaking on reservations to treaties, said the definition adopted by the Commission was satisfactory. Its main purpose in the context of the guide was to establish a clear distinction between reservations on the one side and unilateral declarations on the other. He endorsed the intention of the Commission to re-examine a particular guideline in light of the discussion on interpretative declarations as parts of it were too vague and did not provide a reliable criterion which would enable States to distinguish clearly the so-called across-the-board reservations from interpretative declarations.

Concerning the list of moments when reservations could be made, he agreed that it had to include all situations envisaged in the relevant

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sections of the Vienna Convention of 1969. On notification of succession, he noted that the right of a successor State to make reservations in respect of multilateral treaties to which the predecessor State was a party could not be accepted as granted in all cases of succession of States. It had to be limited to situations where the devolution of the treaty to the successor State did not operate automatically. The distinction was clear from a comparison of the practice of newly independent States born in the process of decolonization and those States which came into existence through the dissolution of a State.

The commentary concerning reservations having territorial scope contained quite convincing arguments in support of such reservations, he said. The guideline on the matter, however, called for careful examination of the problem regarding the moment in which that kind of reservation could be made. He was aware that the work of the Commission on reservations to treaties was still in the stage of definitions, and that those definitions did not prejudge any questions concerning the permissibility of reservations and their effects.

MARK JAYARATNAM (Singapore) said that the draft articles on prevention of transboundary harm had the potential to be an innovative instrument to balance the differing interests of States. He was pleased by the Commission's decision to focus first on the issue of prevention. Turning to diplomatic protection, he suggested that the Commission consider the interrelationship between customary international law and the provisions of any applicable treaty -- for example, on investment protection -- in force between the "offending" and "injured" States. The question of whether a relevant treaty only conferred certain rights or afforded certain remedies to the injured State or its nationals and whether it had recourse to other remedies under the general customary international law relating to diplomatic protection, was an important one with far-reaching implications that the Commission should consider.

It was also important that the Commission consider the safeguards that should exist to prevent abuse of the right of diplomatic protection, he said. The issue of the standard of treatment that should be afforded to aliens was another issue the Commission would have to grapple with.

JULIO BENITEZ SAENZ (Uruguay) said the 17 draft articles on transboundary harm were a true achievement, especially their focus on prevention aspects. He regarded the concept of prevention as fundamental. A focus on preserving the ecosystem was consistent with the declarations of Stockholm and Rio as well as relevant General Assembly resolutions. He supported the proposal by Chile that a high commissioner for the environment be created to deal at the international level with liability for harm to the ecosystem. The scope of application of the draft articles should not be limited by a listing of activities. A broader formulation would allow for future activities which could not currently yet be predicted.

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The draft articles contained a proper balance between the interests of States regarding activities that could cause damage, he said. The scope of application of the draft articles should also be broad enough to cover harm to common spaces, or to the high seas or to the continental shelves. Due diligence should be understood to mean an obligation of States to undertake appropriate legislative measures to minimize effects of harm. It was appropriate that States provide the public with relevant information about potential damage.

On diplomatic protection, he said it would be useful to define its scope. Diplomatic protection was a prerogative of States under international law. He agreed with earlier statements that diplomatic protection and human rights were completely separate and autonomous.

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