SPEAKERS ON RESERVATIONS TO TREATIES AND UNILATERAL ACTS OF STATES HEARD IN SIXTH COMMITTEE DEBATE
Press Release
GA/L/3085
SPEAKERS ON RESERVATIONS TO TREATIES AND UNILATERAL ACTS OF STATES HEARD IN SIXTH COMMITTEE DEBATE
19981029 Committee Continues Discussing International Law Commission ReportThe Sixth Committee (Legal) this afternoon continued its discussion of the International Law Commission's report on the work of its fiftieth session, hearing speakers on the subjects of reservations to treaties and unilateral acts of States, among other topics.
The representative of Sweden, speaking on behalf of the Nordic countries, said that some reservations were so general that it was impossible to reconcile their scope with the object and purpose of the treaty concerned. That had happened all too often in the area of human rights treaties, he said, pointing out that the great majority of States parties to those treaties preferred to remain silent regarding reservations declared by other parties, however troubling they might be.
The Special Rapporteur on international liability of injurious consequences, Pemmarju Sreenivasa Rao, responded to observations by representatives on the subject of transboundary damage from hazardous activities. He said the views expressed in the Sixth Committee would be helpful in the next stage of the Commission's work on the topic of international liability.
The Chairman of the Sixth Committee, Jargalsaikhany Enkhsaikhan (Mongolia), announced that Belarus and Turkey had joined the list of sponsors of draft resolution A/C.6/53/L.3 on "Implementation of the provisions of the Charter of the United Nations related to assistance to third States affected by the application of sanctions", which was introduced this morning.
Also speaking this afternoon were representatives of the Philippines, Israel, Pakistan, Japan, Greece, Nigeria, and the Republic of Korea. The observer for Switzerland also made a statement, as did the Secretary-General of the Asian-African Legal Consultative Committee.
The Sixth Committee will meet again at 10 a.m. on Monday, 2 November, to continue its consideration of the report of the International Law Commission.
Committee Work Programme
The Sixth Committee (Legal) met this afternoon 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) with a focus on Part 2 of the report covering questions related to unilateral acts of States, nationality in relation to the succession of States and reservations to treaties.
During the 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. (For more details about the Commission's report, see Press Release GA/L/3081 of 26 October).
Statements
LARS MAGNUSON (Sweden), speaking on behalf of the Nordic countries, said the approach taken by the Commission on prevention of transboundary harm from hazardous activities was a cautious one, and left out, for the time being, the question of compensation for harm caused. That approach was understandable given the complexity of the issue and the widely disparate views previously expressed. However, the Nordic countries remained of the view that a future international legal instrument should cover both the issue of prevention of transboundary harm and the duty to pay compensation for harm caused. Now that the Commission had completed a first reading of the 17 draft articles on prevention, he recommended that it pursue the liability issue. He added that the need for compensation to innocent victims must be a guiding principle in the elaboration of related articles.
Concerning reservations to treaties, he said the Nordic countries were not convinced that much work should be devoted to the problem of what had been labelled extensive reservations. By going into too much detail in relation to issues which appeared to be more theoretical than practical, one might lose sight of the desired end result -- a guide to practitioners. It was essential that the Commission provide the Committee with easily understood guidelines which clarified the differences -- and similarities-- between reservations and interpretative declarations.
The Commission and the Sixth Committee had no intention of altering the reservations regimes contained in the three Vienna Conventions, he said. The guidelines would merely act to dispel confusion and provide auxiliary definitions to fill in the gaps left open by the Vienna regimes. One area where gaps had been identified was inadmissible reservations. Some
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reservations were so general that it was impossible to reconcile the scope of the reservations with the object and purpose of the treaty concerned. That had happened all too often in the area of human rights treaties. It had to be recognized that the great majority of States parties to human rights treaties preferred to remain silent as to reservations declared by other parties, however troubling they might be. However, he noted with satisfaction that more States than before were showing an interest in that field.
WILLY GAA (Philippines) said that today, and in the future, in a globalized world where governments and whole economies were increasingly becoming dependent on information technology and advances in communication, transboundary harm took on a whole different character. While transboundary harm effected through electronic and digital means might seem to be of a different character, the basic rules of transboundary harm could conceivably be applicable. The Philippines was confident that with foresight, the Commission and the Committee would be able to anticipate certain legal problems and challenges presented by a "wired new world".
The globalized nature of the world also meant that there had been an increase in the movements across borders of peoples and corporations, a fact which made the work of the Commission on diplomatic protection truly important. For the Philippines in particular, the matter was of priority concern. Radical changes to existing and recognized concepts of diplomatic protection, particularly with reference to the relationship between a State and the national the State sought to protect, should be approached carefully. He preferred to maintain the existing legal concepts and supported moves toward their codification.
PEMMARAJU SREENIVASA RAO, Special Rapporteur on international liability of injurious consequences, replied to questions and comments of representatives on the subject which was contained in Part 1 of the Commission's report. The first thing he had done was to focus on the issue of prevention of transboundary damage. He welcomed the positive comments of many representatives on that aspect of his report to the Commission. He noted that questions had legitimately been raised on what to do about prevention issues. The views expressed in the Sixth Committee would be helpful in the next stage of the Commission's work on the topic of international liability.
He said much thought had been given to the scope of the topic. He had not dealt with activities actually causing harm, but was focusing on some components which could be grappled with. He said the Commission would continue to look at suggestions of Committee members as work started on the second reading of the draft articles. He would make further efforts to determine what could be done about issues involving environmental damage. He said positive and constructive criticism would be helpful in his task.
ALAN BAKER (Israel) said a distinction should be drawn between the rules governing each individual act of States. The Commission should strive to
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distinguish between the unilateral act aimed at creating a normative legal obligation and that which could mainly be characterized as being purely a political one. He noted that within the framework of international relations, States made use of unilateral declarations, and that any attempt to clarify them within strict and inflexible categories was unlikely to be compatible with the current dynamic approach to such acts, as reflected in the international arena. To avoid uncertainty, he said the subject should be confined and existing international institutions -- such as the principles of bona fides, estoppel and international customs and practice -- should be used.
On the question of nationality in relation to succession of States, he said the draft articles on the topic represented a significant contribution towards the prevention of statelessness. They addressed key human rights problems which might arise as a consequence of the succession of States. His delegation endorsed a provision which said persons habitually resident in the territory affected by the succession of States were presumed to have acquired the nationality of the successor State on the date of that succession. His delegation felt that the provision should stress that the presumption of nationality was subject to specific arrangements that might be reached by the parties concerned.
He said there should be a distinction between unilateral statements -- on reservations to treaties -- designed to extend the obligations and commitments of a State party beyond those contained in the treaty. The issue of unilateral statements relating to non-recognition should be further considered by the Commission, he said.
MUHAMAD NAJM AKBAR (Pakistan), addressing the topic of nationality in relation to succession of States, said his delegation had no problem with provisions regarding unity of families. Habitual residents should be given preference over legal persons in the granting of nationality. The rules established by the Vienna Convention of the Law of Treaties were flexible. There should be no distinction between human rights treaties and other sets of normative treaties.
On the question of reservations to treaties, he said States should be left to determine whether reservations were consistent with objectives of the treaty concerned. The final part of the Commission's work should be in the form of guidelines. On international liability, he said that due attention should be paid to the needs of developing countries, as set out in the Rio Declaration.
CHUSEI YAMADA (Japan) said the topic of unilateral acts was one of the most difficult the Commission had taken up so far. To limit work to "the strict unilateral legal acts" and to exclude other types of unilateral acts of States from consideration could prevent delegates from engaging in fruitless discussions on concepts of unilateral acts of States. Concerning the suggestion to exclude political acts of States, it seemed quite difficult to
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distinguish in a clear-cut manner the legal unilateral acts from the political ones. It would be necessary to devise effective criteria to differentiate the two. Concerning the suggestion to exclude estoppel and acquiescence, he said the Commission should not be too restrictive as to the types of unilateral acts to be considered.
With regard to nationality in relation to the succession of States, he said that as the definition of the topic now stood, the issues involved were too specific, and the practical need for their solution was not evident. Therefore, he did not wish to continue the study by the Commission as it was currently defined. However, he had no objection if the Commission would consider the question of the nationality of legal persons in international law in general as one of the new future topics.
On reservations to treaties, he said it was regrettable that questions of statement at the time of non-recognition and of substitution, were not included in the guidelines. The guidelines must be comprehensive so as to cover all the State practices.
PHANI DASCALOPOULOU-LIVADA (Greece) said the work of the Commission about nationality of legal persons was worth pursuing as long as it was kept within the general context of succession of States, in which the whole exercise on nationality issues had been undertaken. A second reading of the text on State responsibility should proceed expeditiously. The draft articles should take the form of an international convention, as opposed to a declaration or guidelines.
Commission discussions this year had basically revolved around a single fundamental and crucial question -- whether the distinction between criminal and delictual responsibility should be the one employed by the text. Greece believed that the notion of State crime as expressed in the draft was fundamental to the whole idea of State responsibility. Nonetheless, the use of the word "crime" generated confusion which derived from the domestic law connotations of the term "crime". To avoid that confusion, she suggested the use of the proposed "exceptionally serious wrongful act", although she felt the term "crime" remained preferable, as it denoted in a clear and unequivocal fashion the gravity of the wrongful act envisaged. She also supported retaining the term "delict" as well.
O.S.SHODEINDE (Nigeria), addressing the issue of international liability, said his delegation welcomed the recommendations of the Commission on a regime of prevention, but would not accept its separation from that of liability. Both should be considered together, he said. He welcomed that Nigeria's concerns on dumping of hazardous wastes and prevention of marine pollution had been taken care of by its incorporation in the draft articles on the subject. Nigeria was mindful of the concerns of certain States about the provisions dealing with public information. It endorsed the retention of the
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provision, because States should be obliged to provide information to the public regarding transboundary activities.
On diplomatic protection, he said his delegation agreed that it was a sovereign prerogative as a subject of international law. It welcomed the view that the Sixth Committee should assist the Commission in its efforts to identify the various means available to States to make their rights and those of their nationals effective in the context of diplomatic protection. His Government strongly believed that the use of diplomatic protection should not be discriminately applied or used by a stronger State against a weaker one as an excuse to interfere in the affairs of the latter.
His delegation was not happy that the Rome Statute of the International Criminal Court, adopted on 17 July in Rome, foreclosed the use or entry of reservations. There should be no encouragement of strict or total exclusion of reservation clauses in treaties, provided their uses would not totally defeat the intentions of the treaty concerned. The Commission should be encouraged to continue its work in that area of international law. His delegation supported expanding study of the question of the legal persons' nationality beyond the context of the succession of States to the field of international law in general.
SEUNG-HOH CHOI (Republic of Korea) referring to nationality in relation to the succession of States, said the option of expanding the study of the question of nationality of legal persons beyond the context of the succession of States, to the question of nationality of legal persons in international law in general, was not feasible given the practical obstacle of the wide diversity of national laws on the issue. Another option to limit the scope of the study to the succession of States was also not free from the profound diversity of national laws. After all, legal persons were a construction of legal fiction. Therefore, a discussion of the question, in either a general or a limited context, did not seem to be advisable. The practical impediments appeared to justify dropping that part of the topic.
Concerning nationality of natural persons, he strongly favoured a greater input from the human rights perspective. Certain human rights were so fundamental that they transcended national relativism or State institutions. The predominant vehicle of linkage between individuals and States was nationality and domicile. Human rights were ultimately to be defined on the basis of inviolable human dignity and integrity, and could not be withdrawn or denied at will by any notion of State institution.
DIDIER PFIRTER, Observer for Switzerland said his delegation subscribed to the analysis made by the Special Rapporteur with regard to questions relating to unilateral acts of States, particularly on certain categories of unilateral acts to be excluded from the study. It had doubts about the observations on the question of estoppel which involved acts or conduct by one State which gave rise to certain expectations on the part of another State.
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He said the term "declaration" used by the Rapporteur seemed to be unduly restrictive; his delegation would prefer the term "act". He added that his delegation also subscribed to the Commission's decision to proceed with the preparation of a series of draft articles with commentaries.
TANG CHENGYUAN, Secretary-General of the Asian-African Legal Consultative Committee, said that body attached great significance to its traditional and long-standing ties with the International Law Commission and appreciated the Commission's role in the progressive development and codification of international law. The various items on the Commission's agenda were of immense interest to governments in Africa and in Asian regions. As regards international liability, he said the duties of prevention attached to the State and those of operators of risk-bearing activities should be distinguished. The Commission should also consider the proposal that the consequences of failure of duties of prevention should be dealt with in the field of State responsibility.
On Reservation of Treaties, he said a special meeting had been held on the subject during the thirty-seventh session of the organization in New Delhi. The meeting had considered preliminary conclusions on the Reservations to Normative Multilateral Treaties including Human Rights Treaties adopted by the Commission at its forty-ninth session and had recalled General Assembly resolution 52/156 on the Commission's report on the work of that session. The functions, role and competence of the monitoring bodies to appreciate or determine the admissibility of a reservation had been considered. The treaty regime, including the regime of reservations, should aim at promoting the objective of universality of participation, rather than hinder the process of ratification.
The meeting had also affirmed the significance, complexity and implications of the extra-territorial application of national legislation in the imposition of sanctions against third parties. It had requested the Consultative Committee's secretariat to continue to study the subject and to examine the issue of executive orders imposing sanctions against target States.
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