PROBLEMS RELATED TO SUCCESSION OF STATES AND RESERVATIONS TO TREATIES AMONG ISSUES DISCUSSED BY LEGAL COMMITTEE

2 November 1998

Press Release
GA/L/3086

PROBLEMS RELATED TO SUCCESSION OF STATES AND RESERVATIONS TO TREATIES AMONG ISSUES DISCUSSED BY LEGAL COMMITTEE

19981102 Consideration of Report of International Law Commission Continues

Problems arising from nationality and property rights in the succession of States and reservations to treaties were among issues dealt with as the Sixth Committee (Legal) continued discussion of the report of the International Law Commission on its fiftieth session.

The representative of Croatia said a comprehensive study of the consequences of dissolution of a State would help deal with nationality and property rights issues. Given the absence of an international legal instrument, States now had to rely on bilateral negotiations to resolve those problems, she said.

Concerning unilateral acts of States, the representative of Cuba said the Commission should examine the possibility of a genuine and compelling distinction between such acts as a source of international law or an international obligation. He considered the concept of autonomous acts as artificial, as was the distinction between substantive and formal acts. The decisions of the International Court of Justice as well as of the practice of States should be compiled.

Also making statements were the representatives of Romania, Mexico, Germany, Venezuela, Italy, Libya, Spain and Tunisia.

Victor Rodriguez Cedeno, the Commission's Special Rapporteur on unilateral acts of States, replied to comments and questions raised by representatives.

The Committee will meet again at 3 p.m. tomorrow, 3 November, 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) 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 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. (For more details about the Commission's report, see Press Release GA/L/3081 of 26 October).

Statements

AUREL PREDA (Romania) said there was an inherent link between the issue of liability for injurious consequences arising from acts not prohibited by international law and the issue of protection of the environment. It would be difficult to promote consensus to set up a process for virtually all activities that might cause significant transboundary harm. Rather, the draft articles should be limited to ultra-hazardous or particularly hazardous activities.

On diplomatic protection, he said that in light of the fact that multiple nationality was on the rise and progress in the field of commerce and the economy had become even more complex, draft rules on the matter should define the rights and obligation between the State that had personal jurisdiction and the State that had territorial jurisdiction. Also, a clearer distinction needed to be made between diplomatic protection and consular assistance.

Regarding unilateral acts of States, he said it was better to focus on aspects concerning the elaboration and conditions of validity of those acts. On reservations to treaties, he said there was a need to clarify the ambiguities in the existing regime. Referring specifically to human rights conventions, he said there were no convincing grounds for justifying a separate regime applicable to human rights treaties. The depository of treaties relating to human rights should not have the capacity to pronounce upon the validity of reservations on those specific cases. However, a proper balance should be struck between the unitary character of the regime of reservations and the specific nature of human rights instruments.

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Turning to State responsibility, he said it was the most important and difficult topic on the agenda of the Commission. He did not believe that international law should favour the retention of the idea of "crimes" on behalf of States. He supported the distinction between primary and secondary rules and encouraged the effort for the codification of secondary rules.

BERNADO SEPULVEDA (Mexico) said the Commission's work on the topic of State responsibility was significant. The magnitude of State responsibility depended on the law violated and its consequences. Emphasis should be on identifying the consequences and the results and the type of rules violated. It would be preferable for the Commission to focus on the degree of responsibility and the consequences of actions. Special consideration should be given to circumstances of illicit acts committed by States. The system of dispute settlement provisions in the draft articles were an important contribution by the Commission. The question of responsibility of international organizations should not be included in the draft articles, but could be taken up again. The issue of State responsibility could be the subject of a diplomatic conference.

He welcomed the six draft guidelines on reservations to treaties provided by the Special Rapporteur, and commended him for his excellent study on the topic. Formulation on reservations should follow the acts identified in the 1969 Vienna Convention. He congratulated the Commission for holding the seminar which commemorated its fiftieth anniversary, and also commended its secretariat for its professionalism. He suggested that reports of the Commission should be placed on its website in advance of their publications. He supported the Commission's proposal to begin work on progressive development of environmental law.

REINHARD HILGER (Germany) said that on the issue of unilateral acts of States, it would be helpful first to divide the topic into various categories and concentrate on the most important category in the beginning, that of declarations issued to other States. Issues such as silence, acquiescence, and estoppel, although of interest and important, should be dealt with at a later stage. Noting the two different aspects of natural persons and legal persons in relation to the succession of States, he expressed scepticism about the advisability of extending the topic to study the question of the nationality of legal persons in international law in general.

Turning to reservations to treaties, he said the work of the Commission on the topic had already had a profound effect on State attitude and practice. There was a growing awareness of the importance of including specific restrictive provisions for reservations in conventions to be adopted. The majority of real problems generated by reservations and their consequences, including possible objections, as well as by interpretative declarations, did not involve the question of their definition. An elaboration of highly

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complex definitions would not necessarily be of more than theoretical interest and might even be counterproductive from a practical viewpoint.

Concerning extensive reservations, he said he hoped the Commission would not lose sight of what was really needed, a guide for practitioners -- a practical guide for interpretative declarations. There was an important practical problem with the effects of inadmissible reservations. He supported the conclusion that it was always the exclusive responsibility of the State itself to rectify the defect in the expression of its consent to be bound. The State had various options: withdraw the inadmissible reservation; amend it; or refrain from becoming a party to the treaty altogether. Germany hoped that at its next session, the Commission would concentrate on the question of inadmissible reservations and its effects and try to find convincing solutions for that very complex problem.

NORMAN MONAGAS-LESSEUR (Venezuela) said the issue of nationality in relation to the succession of States should be examined in a broad form, beyond simply the context of succession of States, as it was a very relevant topic in international law in general and could have great usefulness in the study of other issues such as that of diplomatic protection. On the topic of unilateral acts of States, he said one of the principal characteristic of legal acts which were of a purely unilateral nature was their autonomy from two different points of views. The strict unilateral act entailed an automatic obligation in the sense that its effect did not require an acceptance on the part of another State. There had rightly been a separation of a formal act from its content.

The Commission had held a very interesting discussion on the relationship between declarations and reservations, he said. He shared the view that a State could undertake legal obligations with respect to another State without necessarily receiving the consent of that State. The Commission in its study should focus on acts of States and not deal with acts connected with international organizations. However, that did not preclude the possibility that an examination of those acts might be able to be extended to those organizations. Concerning reservations to treaties, he said the Commission's efforts should supplement the Vienna Conventions and offer clarification where necessary.

MAURO POLITI (Italy), addressing the issue of unilateral acts of States, said his delegation agreed in principle with the suggestion of the Commission's Special Rapporteur, that his study of the scope of the topic should be limited to those acts which were strictly unilateral in nature. That would exclude, particularly, unilateral acts of a purely political character, and those linked to a specific legal regime, among others. Unilateral acts of promise, recognition, renunciation and protest were the most evident examples of acts falling within the scope of work to be completed on the topic. Italy subscribed to the Commission's decision to proceed with

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the elaboration of possible draft articles with commentaries on the subject and to invite the Special Rapporteur to produce them.

On the topic of nationality in relation to the succession of States, Italy would like the Commission to pursue the study of the question of nationality of legal persons, he said. He announced that Italy had recently submitted its observations on the draft articles concerning the nationality of natural persons. As regards reservations to treaties, he reiterated Italy's position on the crucial point of the applicability of the reservation set forth in the 1969 Vienna Convention to human rights treaties. The criteria of the object and purpose of the treaty was essential for determining the admissibility of reservations. The Vienna regime was general and embryonic and did not exclude the establishment of special regimes to fill in its gaps and resolve its uncertainties.

Italy shared the Special Rapporteur's view that extensive reservations did not constitute reservations within the meaning of the Vienna Convention, since their binding force could not be based on the treaty, he said. The Italian Government had never made recourse to unilateral statements of that kind, he added.

LJERKA ALAJBEG (Croatia), concerning nationality in relation to succession of States, said the nationality of legal persons was neither covered by existing international law nor by the draft articles covering the issue. As a first step, a comprehensive study would be useful. Problems with legal persons arising from the dissolution of a predecessor State could be divided into two groups: the question of the status of the legal person; and questions related to property issues, which were rather complex. Due to the absence of international legal instruments which might help offer a uniform solution, the question was for the most part negotiated on a bilateral basis. Croatia was in the process of negotiating with other successor States to the former Socialist Federal Republic of Yugoslavia.

Concerning nationality of natural persons in the context of dissolution of a predecessor State, she said the principle of habitual residence was accepted as a dominant criterion for the determination of nationality of natural persons. However, she believed that in the case of dissolution of federal States composed of constituent units, another criterion tended to be more convincing -- that of the nationality of the former constituent unit of the federation. Legal practice of States which had recently emerged following dissolution proved that that criterion was accepted as a more genuine link than habitual residence.

ABDUSALAM SERGIWA (Libya) reaffirmed the importance of the study on unilateral acts of States. His delegation agreed with the need for a clear definition of such acts, and for distinguishing between political and legal acts. Account should be taken of the effects on neighbouring countries of

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laws promulgated by a State. Such an act could impede liberalization of the world economy. He hoped the working group entrusted with work on the topic would examine the issues carefully.

On the reservations to treaties, his delegation felt reservations should not affect their spirit or objectives. On prevention of transboundary harm, he said the question of prevention measures should be further studied, with international liability covered. The State causing harm had a responsibility and a duty to pay compensation to the State whose territory was affected. There should be provisions for harm caused by dumping of waste from outer space and nuclear waste.

AURELIO P. GIRALDA (Spain), noting the importance of the topic of diplomatic protection, said the Commission's work should be based on customary law with focus on codification of secondary rules. There should be a distinction between the right of States and that of an individual. Individuals must have the right to compensation for violations of their rights or lack of diplomatic protection. Human rights and diplomatic protection operated on different levels. Both institutions were undergoing parallel development and should be treated separately.

His delegation also attached great importance to the study on unilateral acts of States which could help in State practice. He recommended that the Commission's work should take the form of a practical guide. It would like renewed impetus by the Commission on its work on State responsibility which, he added, could significantly contribute to security of laws.

PABLO RODRIGUEZ VIDAL (Cuba) said the question of transboundary harm continued to be a complex issue and one which raised substantive questions about the delicate balance that existed between the regime of prevention and the regime of responsibility. In such a globalized world as today's, with its diversity and different levels of development, the principle of common but differentiated responsibility seemed more relevant than ever. The Commission should not ignore that principle. It would have been useful to include a mention of that principle, as well as substantive provisions on international cooperation and concrete commitments for technical and financial assistance to developing countries.

Neither should the issue of diplomatic protection be separated from that of development, he said. Diplomatic protection was unquestionably a legal notion. He did not consider it appropriate to distinguish between primary and secondary laws as both were, in general, governed by international law. Any new focus on the matter by the Commission should be based on practice, in particular, the legal practice of States, all the while recognizing that diplomatic protection was only one part of the broad regime of State responsibility.

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Concerning unilateral acts of States, he suggested that the Commission examine the possibility of offering a genuine and compelling distinction between unilateral acts as a source of international law or as a source of international obligation. He considered the concept of autonomous acts as artificial as was the distinction between substantive and formal acts. On the issue, there should be a compilation of decisions of the International Court of Justice as well as of the practice of States.

Turning to reservations to treaties, he said the attempt to define reservations and interpretative declarations raised several legal and political questions. The Vienna Conventions had derived from the appropriate recognition that the distinction between the two as well as a definition of the types of reservations was extremely difficult. A definition could not conclusively determine the validity of reservations nor of declarations.

WALID DOUDECH (Tunisia), addressing the topic of reservations to treaties, said the Commission took a wise decision in not calling to question the Vienna Conventions. It should strengthen the two Conventions, filling in the gaps with new provisions. In cases of uncertainties regarding reservations, recourse should be made to the relevant provisions of the Vienna Conventions. With respect to unilateral acts of States, he said it was essential that such acts be properly defined and the concerned State's intentions determined. The Commission's future work on the topic should also cover the framework for such unilateral acts. The Special Rapporteur should also in future provide a comprehensive study of the issue.

On the question of prevention of transboundary harm, he said the principle of prevention underscored by the Commission was reflected in many international instruments and declarations such as the Rio Declaration on Environment and Development. States should take appropriate measures to prevent or reduce transboundary harm to a minimum. Their capacity to do so should be taken into account in determining liability. He commended the Commission for its remarkable catalytic role in the development and codification of international law.

VICTOR RODRIGUEZ CEDENO, the Commission's Special Rapporteur on the topic of unilateral acts of States, reacting to comments of delegations on the subject, said a definition of such acts was essential in distinguishing between political and legal ones. He noted that there were two categories of unilateral acts -- by States and by international organizations. His work had been confined to unilateral acts of States alone for the time being under the mandate given him by the Commission. Views expressed on the matter by Committee members would be taken into account in the preparation of his report.

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