WORK OF INTERNATIONAL LAW COMMISSION CONTINUES TO BE SUBJECT OF DISCUSSION IN SIXTH COMMITTEE

Press Release
GA/L/3129

WORK OF INTERNATIONAL LAW COMMISSION CONTINUES TO BE SUBJECT OF DISCUSSION IN SIXTH COMMITTEE

Debate Focuses on Approaches to Unilateral Acts, Transboundary Harm

The Sixth Committee continued its discussion of the International Law Commission’s report, focusing primarily on the chapters covering unilateral acts of State and prevention of transboundary harm.

Speaking in the debate were the representatives of Spain, Libya, India, France, Malaysia, Burkina Faso, Hungary, Russian Federation, Slovakia, Iran and Cyprus.

Commenting on the Commission’s efforts to develop rules of law on universal acts, the representative of India said that whether such acts were political or legal, or formulated by one State or several, there should be a clear expression of the will to assume legal obligations or create rights in favor of the addresses. It was clear that a State could not impose obligations on other States through unilateral acts without their consent. He warned against undue reliance on the law of treaties, which he said could distort the very purpose of the exercise. He also said that the range of persons formulating unilateral acts appeared to be wider in practice than the range of persons empowered to conclude treaties under the Vienna conventions.

The representative of France also said it was too risky to adapt provisions from the Vienna Convention on the Law of Treaties to the draft guide on unilateral acts. It would be more appropriate for the Commission’s working group on the topic to study the practice of States. Referring to the current work on definitions, he said he doubted whether the heads of diplomatic missions, or other representatives to international organizations, could really be considered as empowered to undertake unilateral acts.

The French speaker urged the Commission to make unilateral acts of international organizations the subject of a separate study, and also to exclude unilateral political acts form its current work.

Meanwhile, several speakers supported the Commission’s decision to postpone work on the liability aspect of transboundary harm until a second reading of draft articles establishing a prevention regime and

Sixth Committee - 1a - Press Release GA/L/3129 26th Meeting (AM) 4 November 1999

due diligence for transboundary damage had been completed. The representative of Spain said deep differences on the matter of liability would have to be resolved before there could be an attempt at codification.

However, the speaker for Hungary said the two issues were closely related, and the suspension of work on liability could hamper the full development and effectiveness of the rules related to prevention. He urged the Commission not lose sight of its original task of elaborating rules on liability.

The speaker for Iran, discussing the Commission’s work on jurisdictional immunities of States and their property, said that the emerging tendency of States to enact national legislation excluding commercial activities from the scope of State immunity, did not provide for an international standard for such immunity. Citing considerable variations in legislation, he said it was absolutely necessary to develop an international standard and clarify complex problems arising from national approaches to an out of a national approach to an issue of international law. Also, he wished to see the working group on the issue clearly define “commercial transaction”, so as to avoid conflicting national interpretations.

The Committee will meet again this afternoon at 3:30 to continue its discussion of the report of the International Law Commission.

Committee Work Programme

The Committee met this morning to continue its discussion of the International Law Commission’s report. The Committee is discussing the chapters of the report that cover unilateral acts of States and the prevention of transboundary harm.

JULIO MONTESINO RAMOS (Spain), speaking on reservations to treaties, said the work done so far was extremely accurate and filled in gaps left by the Vienna Conventions. He agreed with the concept of conditional interpretative declarations as contained in guideline 1.2.1. Their effects should be subject to a legal regime. He also agreed, as provided for in 1.5.1, that unilateral statements on the part of a State, with respect to a modification in a bilateral treaty, could not be considered to be reservations. The title of that section should be changed to distinguish it from the rule it introduced.

Concerning unilateral acts of States, he shared the doubts of those who felt that a consideration of the “autonomy” of unilateral acts excessively restricted the scope of the work of the Special Rapporteur. The guide must go beyond a definition of a unilateral act. He would welcome the expansion of the scope to include unilateral acts with respect to international organizations. He was aware of the inherent difficulties connected with the issue, but trusted that the Commission could still include such an examination in its future work.

Turning to the prevention of transboundary harm, he agreed with the decision to postpone an examination of liability until after a second reading of the draft on prevention was completed. There were still deep differences on liability that would have to be resolved before there could be codification. It was also logical to deal separately with questions related to fulfilment of the obligation of due diligence.

ABDULAZIZ BUHEDMA (Libya), speaking on nationality in relation to the succession of States, said the Commission’s work on that issue was very important and would greatly contribute to the progressive development of international law. The draft articles recognized the right of individuals to nationality, and the obligation of States to prevent statelessness. That responsibility was an important provision that would ensure the unity of the family.

He said the draft articles were adequate to their purpose. He noted that they would not apply to persons in lands occupied or annexed by force. Libya supported the Commission’s recommendation that they be adopted as a declaration by the General Assembly.

As regards the question of Reservations to treaties, he said Libya did not draw distinctions with respect to the treaties to which it was a party. He supported further work on the issue of jurisdictional immunities of States and their property. On the question of international liability, Libya affirmed the view that States responsible for damage should be held liable for it.

DR.VED PRATAP VAIDIK (India), said unilateral acts could be political or legal; they could be formulated by one or more States, but in every case, there should be a clear expression of will to assume legal obligations or create rights in favor of the addressees. It was equally clear, though, that a State could not impose obligations on other States through unilateral acts without their consent. A unilateral act, to qualify as a special source of international law, should be truly autonomous. That is, it should not depend on a pre-existing act; and the obligation incurred must be independent of its acceptance by another state.

He noted the recommendation that the Commission focus on “declaration” as a formal act creating legal norms as well as the fact that only unilateral acts intending to produce legal effects internationally were covered in the guide. The scope should be broadened to allow for examination of acts that could be treated under the concept of estoppel. Also, in developing the law on unilateral acts, undue reliance on the law of treaties could distort the very purpose of the exercise. The distinction between political and legal unilateral acts was based not so much on the form or the content, as on the intention of the authors to produce legal effects. The range of persons formulating unilateral acts giving rise to rights or obligations under international law appeared to be wider than that of persons empowered to conclude treaties under the Vienna Conventions.

Turning to prevention of transboundary harm, he agreed that the Commission should consider the topic of international liability after its work on the regime of prevention was completed.

On reservations to treaties, he accepted the Commission’s draft guidelines as a useful contribution to the process of international law making. The guidelines were not likely to give rise to many problems from a policy and political standpoint as they were not intended to revise the regime of reservations contained in the Vienna Conventions.

FRANCOIS ALABRUNE (France) said unilateral acts of international organizations should be the subject of a separate study by the Commission. Unilateral political acts should also be excluded from the Commission’s current work Meanwhile, there was need for a good definition of unilateral acts. France had difficulties with the draft definition. The objective of codification should be to cover all kinds of unilateral acts. The problem lay in the limitation of the scope of the draft articles; the approach was too restrictive.

On provisions relating to the legal effects that unilateral acts purported to achieve, he said the issue was complex. He doubted whether the heads of diplomatic missions, or other representatives to international organizations, could really be considered as empowered to undertake unilateral acts.

He also said that it was too risky to adapt provisions from the Vienna Convention on the Law of Treaties to the draft articles. It would be more appropriate for the working group on the topic to study the practice of States. France would provide information on its own practice. Finally, he said that the Commission’s long-term programme of work should be based on the wishes of Member States.

UMI KALTHUM ABDULLAH MAJID (Malaysia) said the terms of reference for the working group on unilateral acts was related to the unilateral acts by States, not international organizations. The relevant report of the Special Rapporteur did not deal with the unilateral enactment of domestic laws having territorial effects on other States, which in turn affected other forms of international relationships, including commercial and financial, be they between third States and/or their nationals. Because of those gaps, she regretted that the scope of work had been limited to a study within the framework of the Vienna Convention on the Law of Treaties of 1969.

However, she said, salient comments had been made by the working group on the Special Rapporteur’s report, in particular the observation that the interpretation of what constituted unilateral acts was too restrictive. She urged the Commission to expand the definition of unilateral acts to include enactment of domestic legislation that had direct and indirect extra- territorial application on other States or nationals of other States. It should also include the recourse by a State to unilateral use of force on nationals of another State within the territory of other States in furtherance of the enforcement of domestic legislation.

ALAINE EDOUARD TRAORE (Burkina Faso) supported the views expressed by the Commission on the question of nationality in relation to the succession of States. In particular, he welcomed the draft provisions on habitual residence. He said it would be disastrous to leave individuals stateless and without nationality. It was important that a balance was struck between the interests of States and those of individuals. The rules should provide for equitable justice.

Burkina Faso also attached importance to the Commission’s work on international liability for injurious consequences arising out of acts not prohibited by international law. States had a responsibility to repair damage they caused, and their responsibility could be determined in several ways. His Government would provide the comments requested by the Commission.

GYORGY SZENASI (Hungary) endorsed the concept of unilateral act agreed upon by the Commission’s working group. That concept, as well as the findings of the proposed questionnaire to be circulated to Governments, would serve as a good starting point for State practice.

Turning to the prevention of transboundary damage from hazardous activities, he said the Commission’s work on it was a bold undertaking that merited further and detailed discussion. Hungary took note of the Commission’s decision to return to the question of liability after completing the second reading of the draft articles on prevention. Because the duty of States to exercise due diligence for prevention was closely related to the question of liability if such obligations were not fulfilled, suspension of work on the latter topic would hamper the full development and effectiveness of the rules related to prevention.

Furthermore, he said, such a decision could not be reconciled with Principle 22 of the Stockholm Declaration on the Human Environment and Principle 13 of the Rio Declaration on Environment and Development. In those declarations, States were encouraged “to cooperate in developing further international law regarding liability and compensation for environmental damage caused by activities within their jurisdiction or control to areas beyond their national jurisdiction”. He said the Commission should not lose sight of its original task of elaborating rules on liability. ILYA ROGACHEV (Russian Federation), said great progress had been achieved in drafting the guidelines on reservations to treaties because the discussion had been based on the recognition of the status quo of the Vienna Conventions. Despite some shortcomings in the Vienna regime on reservations, the Conventions had proven their durability and withstood the test of time. However, their provisions on reservations were not easily transferable to unilateral declarations. It was necessary to distinguish the characteristics of unilateral declarations from those of reservations. That necessitated the identification of practical criteria.

The particular nature of unilateral declarations must be defined. Many such declarations might appear to resemble reservations but were in fact different. A definition would prove useful in cases where interpretative declarations left the situation ambiguous and unclear. Speaking specifically on the guidelines, he supported the formulation of 1.3, on a distinction between interpretative declarations and reservations. In determining the nature of a unilateral declaration, he suggested looking at documents, other than the treaty and the declaration itself, that could clarify the intent of the declaration.

The question of the adoption of mixed declarations was not sufficiently reflected in the Commission’s work. It might also be helpful, he said, to include an illustrative list of interpretative declarations that could be confused with reservations. He agreed with the Commission that reservations to bilateral treaties were distinct from reservations to multilateral treaties. Reservations to bilateral treaties were aimed at not a juridical effect of treaties but rather at provisions of the treaties themselves. Inasmuch as the concept of “consent” was not mentioned in the Vienna Conventions, it might be helpful to include an explanation of the term in the guidelines.

JAN VARSO (Slovakia), speaking on reservations to treaties, said his Government supported the conceptual approach adopted by the Commission on the structure and final contents of the draft articles.

On State responsibilities, he hoped the working group would discuss all aspects of the question of countermeasures. He also hoped progress would be made on the question of jurisdictional immunities of States and their property.

The characteristics of unilateral acts of States should be analyzed he said. Slovakia was not, however, convinced of the need for that at present.

SAEID MIRZAEE-YENGEJEH (Iran), speaking first on nationality in relation to succession of states, said that if the draft articles were adopted as a declaration, it would save a lot of time and energy. The text could be made readily available to assist States currently coping with the problems of nationality. He agreed that, in the absence of interest from Member States, the Commission should not proceed with work on nationality of legal persons.

On jurisdictional immunities of States and their property, he noted that a number of States had enacted national legislation in the past few years, restricting the immunity of other States so as to apply only to sovereign acts. That legislation reflected an emerging tendency to exclude commercial activities from the scope of State immunity, but id not provide an international standard for State immunity. Citing considerable variations in such legislation, he said it was absolutely necessary to develop an international standard for limitations to state immunity and clarify complex problems arising from national approaches to an issue of international law. He urged the Committee to spare no effort in bringing to fruition its endeavours on state immunity.

Referring to the forthcoming meeting of the working group on jurisdictional inmunity, he said it was essential to clearly define a commercial transaction. If the issue were left to be dealt with at the national level, there would surely be conflicting interpretations. He supported the inclusion of both the nature and the purpose elements in a definition.

Turning to unilateral acts, he agreed that, at this stage, unilateral acts of international organizations should not be addressed by the Commission. However, it might be useful to conduct a study on estoppel, without prejudice to its possible inclusion in the project. It was absolutely necessary to conduct a survey of various types of unilateral acts of States and classify them.

He agreed that the Commission should suspend work on the liability aspect of transboundary harm until it had completed a second reading of the draft articles on prevention.

A.J.JACOVIDES (Cyprus) welcomed the Commission’s work on nationality in relation to succession of States. Cyprus agreed with its fundamental concern about the protection of the human rights of persons whose nationality might be affected by succession. It agreed with the recommendation that the draft articles on the subject be adopted by the General Assembly as a declaration.

On jurisdictional immunities of States and their property, Cyprus favoured the Commission’s taking a pragmatic approach. He said the Commission should avoid doctrinal differences between the absolute and restrictive immunity theories, while aiming at compromises on the outstanding issues, based on a realistic adjustment to contemporary requirements.

Cyprus agreed with the approach adopted by the Special Rapporteur on the question of State responsibility, he went on. It saw a practical reason for a distinction between States specifically injured by an internationally wrongful act and other States that had a legal interest in the performance of the relevant obligations but did not suffer economically justifiable injury.

As for reservations to treaties, he said Cyprus shared the view that the basic provisions were to be found in the Vienna Conventions on the Law of Treaties. It also agreed to the elaboration of a practice guide rather than a more rigid and formal document.