LEGAL COMMITTEE CONCLUDES REVIEW OF COMMISSION REPORT
Press Release
GA/L/3090
LEGAL COMMITTEE CONCLUDES REVIEW OF COMMISSION REPORT
19981105 Chairman Notes 'Positive Dialogue' on State Responsibility, Trans-boundary Damage, Other Areas of Evolving International LawThe Sixth Committee (Legal) this afternoon concluded its two-week long discussion of the report of the International Law Commission, on the work of its fiftieth session. The discussion was described by the Committee Chairman as the highlight of his Committee's work during the current session of the General Assembly.
Chairman Jargalsaikhany Enkhsaikhan of Mongolia said the dialogue with the Commission had been very useful. He noted that it was the first time that four out of five of the Commission's Special Rapporteurs had been present in the discussion of Commission reports and expressed the hope that the practice would continue.
Joao Clemente Baena Soares of Brazil, Chairman of the International Law Commission, thanked the Sixth Committee Chairman for the opportunity for the dialogue. It was essential for the Commission to be apprised of the views of governments on topics on its agenda, he said. Government comments, opinions and criticisms were useful, as were those expressed in the Sixth Committee, he added.
James Crawford, Special Rapporteur on State responsibility, expressed gratitude for the considerable number of Committee members who took the floor on the subject. He appealed to governments to submit their comments on the draft articles on State responsibility by early next year to enable the Commission to conclude its work on the subject, as planned, by the year 2001.
During its session, the Commission adopted on first reading 17 draft articles on prevention of trans-boundary damage from hazardous activities. It considered a preliminary report of its Special Rapporteur on diplomatic protection, which dealt with its legal nature and the rules governing it. The Commission examined the first report of the Special Rapporteur on unilateral acts of States and requested him to submit draft articles on its definition and scope in his second report.
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It also examined the first report of its Special Rapporteur on the question of State responsibility, which dealt with general issues relating to draft articles on the subject. In other actions, it considered the fourth report of the Special Rapporteur on nationality in relation to the succession of States; and adopted draft guidelines covering definition and object of reservations to treaties. Among its other decisions and recommendations, the Commission decided to hold its fifty-first session from 3 May to 23 July 1999 in Geneva, and a subsequent one, also in Geneva, from 24 April to 2 June and from 3 July to 11 August 2000.
The International Law Commission, a United Nations body charged with promoting the progressive development of international law and its codification, was established by the General Assembly in 1947 to codify customary international law in areas where it does not exist or has not sufficiently evolved. The Commission, which meets annually, is composed of 34 members elected by the General Assembly for five-year terms. They serve in their personal capacity.
Statements were also made this afternoon by the representatives of Japan, Australia, Egypt, Ukraine, Sri Lanka, Slovakia, Greece, Bosnia and Herzegovina and the Republic of Korea.
The Sixth Committee will meet again at 3 p.m. on Monday, 9 November, to begin consideration of its agenda item on "Convention on jurisdictional immunities of States and their property".
Committee Work Programme
The Sixth Committee (Legal) met this afternoon to conclude its consideration of the report of the International Law Commission on the work of its fiftieth session held in Geneva from 20 April to 12 June, and in New York from 27 July to 14 August (document A/53/10 and Corr.1). Speakers this afternoon were expected to concentrate on issues concerning State responsibility and other decisions and conclusions of the Commission dealt with in the report. The Commission's work on State responsibility began at its seventh session in 1955. (For more details about the subject, see Press Release GA/L/3087).
KANSUKE NAGAOKA (Japan) speaking on the issue of State responsibility, said the Commission seemed to have reached a common understanding that the notion of international crimes of State did not provide for the penalization of the State. While that was an important step forward, unresolved questions concerning that concept remained. A study of the question regarding hierarchy of international obligations should examine developments with respect to jus cogens and obligations erga omnes. However, neither of those concepts had yet been sufficiently clarified and ambiguities remained as to their concrete contents. Therefore, it would not be wise to indulge in a distinction of the two, but rather there should be an examination of specific obligations in a practical manner.
As for applying different regimes of international responsibility to more serious breaches, he said, there must be a careful study as to whether punitive reparations were to be allowed in international law. One would also need to look at how claims issued by States not directly damaged or affected were to be dealt with, and what would be the appropriate relationship between a regime of international responsibility and the collective security of the United Nations.
CATE STEAINS (Australia) said the Commission, in its fiftieth year, had once again demonstrated its relevance to the development and codification of international law. Australia welcomed initiatives the Commission had undertaken to promote greater efficiency of its programme of work. For its part, Australia would endeavour to provide more timely input into the Commission's work and would encourage other States to do the same. She said principles developed in the context of State immunity were not necessarily applicable in the context of State responsibility. The distinction between governmental acts, (jure imperii), and private acts relating to trade, (jure gestionis), was of undoubted relevance in deciding issues of foreign State immunity before domestic courts. Australia believed that a State should not be able to mischaracterize an entity by reference to its internal law and thus avoid responsibility for the acts of an entity which was, in fact, a State organ.
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On the question of counter-measures, she said it might be useful for the Commission to consider relationship of the question with resort to third party dispute settlement procedures. Australia supported the conclusions drawn by the working group on Diplomatic Protection, particularly the view that the Commission should deal only with secondary rules. It also agreed that the Commission should concentrate on examination of the admissibility of claims and the law relating to the prior conditions which had to be satisfied before claims were made. On the topic of unilateral acts, Australia supported an extension of the study by the Special Rapporteur to examination of acts not necessarily undertaken with the intention to create legal effects or to alter its juridical situation under international law.
NABIL ELARABY (Egypt) said the Commission had been as faithful as could be to its mandate of "progressive development of international law and its codification", given the difficulty, if not impossibility, of maintaining a distinction between the two functions. The Planning Group of the Commission should focus on questions which were at the heart of international relations. Selected topics should be sufficiently advanced in terms of State practice, a criterion which had not been absolutely observed with certain topics currently under consideration.
Concerning reservations to treaties, he said the reservation regime, like any other legal regime, should be universally applied and should accommodate the requirements of the international community in order not to create a dual regime. While giving due weight to the maintenance of the integrity of a treaty to the greatest extent possible, the effect of reservations upon its integrity should not be overestimated. The impact of flat rules on reservations did not serve the purpose of creating a universal regime. He added that often the only possible way for States to come on board a general multilateral instrument, was by explaining its position on, and its interpretation of, certain provisions through interpretative declarations. He therefore hoped that the Special Rapporteur on the matter would consider those declarations in light of the specifics of the different cultures which influenced the legal regimes of nations.
On State responsibility, he agreed that obligations owed erga omnes needed further elaboration. Also, while a distinction between primary and secondary rules was imperfect, it seemed to be the most suitable approach. He added that he saw no merit in the distinction between "criminal" and "delictual" responsibility of States, as long as it did not have an impact on differentiated action taken against the wrongdoer.
Diplomatic protection served as a means of consecrating the idea that the individual and private person was a subject of international law. It was the only means by which a State may protect an individual or private person at the international level. In establishing guidelines, the Commission should limit itself to secondary rules and discuss primary ones only where necessary.
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VIKTOR KACHURENKO (Ukraine), speaking on unilateral acts of States, said he appreciated limitation of the topic, for the purpose of producing international legal effects. Among the priorities on the issue, he said, were: State acts producing international legal effects, the relation between unilateral acts of States and international arbitration or judicial procedures and specific legal regimes; revocability of unilateral acts, and effects of the silence of a State or acquiescence. He supported the idea that the binding nature of unilateral acts resided in the sovereignty of States in exercise of which such acts were made. Ukraine's statement on its non-nuclear status served as a good example of an internal instrument creating international legal consequences. In the conduct of their international relations with Ukraine, States reasonably relied upon that unilateral obligation assumed by his country.
On the issue of State responsibility, he said it seemed useful in a practical sense to draft the articles on the assumption that the rule of law of the lex specialis be transformed into a general principle. The form of the draft articles could be decided upon after a generally acceptable text had been reached. At the same time, he said, he supported the proposal of adopting a code of State responsibility under international law which would be similar to a convention by its content, while resembling a General Assembly declaration in its binding character. He supported the proposal to either exclude or replace the word "crimes" with the concept of "exceptionally serious wrongful acts".
JOHN DE SARAM (Sri Lanka) said the relationship between State responsibility and international liability was encountered in the problem of trans-boundary harm. Given that such harm had the potential to be of catastrophic magnitude, he doubted the adequacy of norms of international law that had come down from earlier times. It must be remembered that the General Assembly had entrusted the International Law Commission not only with the codification of international law, but also with its progressive development. The difficulty with the issue of trans-boundary harm was that it did not allow one to disengage from the possibility that the harm caused could be considerable. By contemporary humanitarian standards, it would be unfair to let the harm lie where it fell, without provision being made for compensation. The subject of obligation to compensate at the inter-State level, in the case of trans-boundary harm of catastrophic magnitude, raised difficult issues under international law where authoritative international judicial or arbitral guidance was sparse. Rather than requesting the Commission to take up the question of the obligation to compensate, it might be better to leave the matter for the moment and hope that at some stage, the issue would be placed before the International Court of Justice.
On other aspects of State responsibility, he said it was essential for the Commission to complete its work within the next year or two. The draft articles should not take the form of a convention, but rather should be in the form of a declaration of the General Assembly. The articles should not enter
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into the general question of settlement of disputes nor should they include provisions on counter-measures.
PETER TOMKA (Slovakia), speaking on all the subjects covered by the Commission during its session, said the Commission should proceed with the second reading of its draft articles on "prevention of trans-boundary damage for hazardous activities" before eventually embarking upon the second part of the topic, the liability itself. The draft articles seemed well conceived, inspired by the recent conventions in the field of environmental protection and non-navigational uses of international water courses, he said.
On diplomatic protection, he hoped the Commission would move towards formulating draft articles on the topic, including an elaboration of commentaries on it. Slovakia endorsed the main conclusion of the working group that the customary law approach should form the basis of the Commission's work on the topic. Diplomatic protection was the right of a State, he said, adding that his delegation did not share the view that exercising that right was simply acting as an agent of a national who had a legally protected interest at the international level. The Commission should proceed, first, with the codification of the rules governing the diplomatic protection of natural persons where the substantive body of law already existed, and later pay attention to the issue of the diplomatic protection of legal persons.
The issue of nationality in relation to succession of States had a great relevance to his country, he said, as Slovakia, together with the Czech Republic, had quite recently undergone a process of State succession following the dissolution of the former Czech and Slovak Federal Republic. He said the two States had not faced any practical problems in that area, as the legal order of the former federation had been generally accepted by them. As regards the question of State responsibility, he said the completion of the second reading of the draft articles on the topic by the end of the Commission's mandate would be a major contribution to the progressive development and codification of international law.
MARIA TELALIAN (Greece) said it was the responsibility of a State to prevent trans-boundary damage from hazardous activities. With respect to dispute settlement arising out of such activities, she said, a compulsory procedure of fact-finding was a most effective way for objective determination of the relevant facts. Her delegation did not see why the initiation of such a mission should be delayed for six months and until the parties had failed to reach agreement, as provided for in the draft articles on the topic.
She said the Commission should find appropriate ways to facilitate the practical application of the complex system of reservations and acceptance of treaties by States. Greece agreed with the Commission that the unilateral character of a reservation was not affected by a joint reservation formulated by several States with special solidarity ties. It did not accept as
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constituting a reservation a unilateral statement by which a State expressed its intention to commit itself beyond its treaty obligations. Similarly, statements related to the non-recognition of States could not be considered as reservations, regardless of whether or not those statements had any direct impact on the application of the treaty as between two parties. Such statements should be governed by the law on State recognition and not by that on reservations, she said.
DJORDJE KOCETKOV (Bosnia and Herzegovina) said the definition of reservations to treaties in the draft guidelines was acceptable. The guidelines were in accordance with the Vienna Conventions and were based on experiences with the practice of reservations. Particular attention should be paid to the complex issue of reservations and interpretative declarations. As a successor State, Bosnia and Herzegovina was interested in a reconsideration of the possibility of expressing reservations and interpretative declarations in the process of notification on succession to treaties by new States which had emerged after dissolution of the former State. This would be in the same way that had been allowed for newly independent States. While he accepted that the possibilities should be restrictive, given the need for stability of established treaty relations, they should still be granted in order to achieve the equal treatment and position of States emerging after dissolution, as new and equal subjects of international law.
CHEE CHOUNG-IL (Republic of Korea), speaking on unilateral acts of States, said a body of jurisprudence on the topic had been built up. The task of the Commission in tackling the subject was an enormous one. The first effort should be to identify what constituted a unilateral act and then to begin codification. On State responsibility, he commended the work of the Special Rapporteur on the subject and said the Republic of Korea had already submitted its reply to questions raised. However, he said, it was not appropriate to use the word "penal" in the context of a State, no matter how brutal and heinous the act might be. When punishing a crime of State, in fact one was punishing an individual. He said he felt, therefore, that the relevant article should be deleted from the draft as it served no useful purpose. Characterizing international wrongs should suffice, he said.
On reservations to treaties, he expressed concern about the clear lack of distinction between reservations to treaties and interpretative declarations. The Vienna Convention was silent on the subject and the practice of interpretative declarations appeared to develop after adoption of the Vienna Convention. He was disappointed that the Commission had not yet come to a clear definition of the two and urged the Commission to continue work on the matter.
JAMES CRAWFORD, Special Rapporteur on State responsibility, responding to observations made by delegations in the course of discussion of the topic, expressed gratitude for the considerable number who took the floor. He appealed to governments to submit their comments on the draft articles on
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State responsibility, stressing that it was still not too late to do so. He said it would be helpful if those comments were received by early next year. He said the Commission intended to complete its work on State responsibility by the year 2001.
JOAO BAENA SOARES, Chairman of the International Law Commission, in closing comments, thanked the Chairman of the Sixth Committee for the permission granted to the Commission's Special Rapporteurs to conduct a dialogue with Committee members. He said that practice should continue, since it allowed the Special Rapporteurs to learn first hand of the views of governments. His personal evaluation of the part of the session which took place in New York was positive. Efforts should be made to make the Commission more relevant and more effective in carrying out its mission. He said measures should be taken to ensure that Commission reports reached governments on a timely basis to allow for comments. It was essential for the Commission to be apprised of the views of governments on topics. Government comments, opinions and criticisms, were useful to the Commission in its work. Opinions expressed in the Sixth Committee were as seriously considered by the Commission as written comments from governments.
JARGALSAIKHANY ENKHSAIKHAN (Mongolia), Chairman of the Sixth Committee, said the last two weeks had been the highlight of the Committee's work. He said the dialogue with the Commission had been very useful, noting that it was the first time that four out of five Special Rapporteurs had been present in the discussion of the Commission's report. He expressed the hope that the practice would continue.
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