QUESTION OF HOW TO CODIFY UNILATERAL ACTS CONTINUES TO OCCUPY LEGAL COMMITTEE

Press Release
GA/L/3130

QUESTION OF HOW TO CODIFY UNILATERAL ACTS CONTINUES TO OCCUPY LEGAL COMMITTEE

The Sixth Committee this afternoon continued debate on issues related to the nature of unilateral acts of States and a prevention regime for transboundary damage and reservations to treaties, as it considered efforts by the International Law Commission to elaborate rules on those topics.

Speakers welcomed the Commission’s circulation of a questionnaire seeking the views and practices of States on unilateral acts, saying it would allow the Commission to examine the general tendencies and applications of States in the field. The speaker for Japan said that once comments from Governments had been received on the Commission’s draft articles on the subject, she hoped their formulation would correspond more closely with actual practice.

The representative of China said it would be impossible to codify all the legal aspects of unilateral acts of States in a single legal instrument. Moreover, some of those acts were already regulated by international legal norms. China favoured an appropriately restrictive scope for the topic, with acts related to treaty law excluded.

The speaker for Egypt said there was no reason for a distinct regime on reservations for one particular area of codification, such as human rights, while all other areas remained subject to general rules on reservations. Egypt attached importance to the work of human rights treaty monitoring bodies, but emphasized that they should remain within the prerogatives of their respective mandates. Determination of the admissibility and effect of reservations could only be made by courts of law.

Turkey’s representative said that unilateral acts were the most common instruments in day-to-day international relations. Noting that heads of State and Government and foreign ministers were widely regarded as having the capacity to commit a state by means of a unilateral act, he said a restrictive approach should be followed in endowing other state officials with that capacity.

The representative of the Russian Federation supported the overall approach of the Commission in limiting the rules it drafted to certain aspects of unilateral acts of States. It was advisable for it

Sixth Committee - 1a - Press Release GA/L/3130 27th Meeting (PM) 4 November 1999

to refrain from a study of the unilateral acts of international organizations.

The representative of Cote d’Ivoire said the Commission should distinguish between declarations made with regard to bilateral treaties and those made regarding multilateral treaties. There were distinct legal regimes governing the two. The difference was in their nature and not simply one of degree.

Costa Rica’s speaker expressed concern about discussions within the Commission on the theme of humanitarian intervention. His country preferred to see the issue discussed among States and not by an organ composed of experts acting in a personal capacity. Moreover, the discussion was unnecessary in the context of draft articles on state responsibility.

Speaking in the debate were the representatives of Japan, Costa Rica, Venezuela, Austria, Egypt, Russian Federation, China, Cote d’Ivoire, and Turkey.

The Committee will meet again tomorrow, Friday, 5 November at 10 a.m., to finalize its consideration of the Commission’s report.

Committee Work Programme

The Committee met this afternoon to continue its discussion of the International Law Commission’s report, with focus on the chapters covering unilateral acts of States and the prevention of transboundary harm. The Committee will also consider miscellaneous decisions taken by the Commission at its most recent session, which took place in Geneva from 3 May to 23 July 1999.

Statements Made

RUMI ARIYOSHI (Japan) said the discussion on unilateral acts had been sufficiently thorough. A consideration based on actual practice was especially important. She therefore welcomed the Commission’s approach of conducting a questionnaire survey of Governments. She expressed doubt about the draft articles’ frequent references to the Vienna Conventions, as the legal nature and effects of unilateral acts were considered different from those of treaties.

She strongly supported the decision to defer consideration of the question of international liability for transboundary harm, as priority should be given to finishing the second reading of the draft articles on prevention. Once the comments from Governments had been received on those draft articles, she hoped their formulation would correspond more closely with actual practice.

Japan, along with the Asian-African Legal Consultative Committee, firmly believed that the Commission should take up the important question of the environment. She hoped that the Commission would be able to define the scope and content of its work in that area.

CARLOS FERNANDO DIAZ (Costa Rica) said the concept proposed as a point of departure for a definition of unilateral acts was restrictive and abstract. While he recognized its intellectual value as an analytic tool, it did not reflect the complexity of state practice. One could not distinguish between a political act and a legal act in international relations. All acts of state had a political character. The true question was whether an act generated a legal effect in the framework and circumstances in which it was made. Autonomous unilateral declarations made with the clear intention of producing a legal effect were a category unto themselves. He proposed a broader concept of unilateral acts, based on good faith, preclusion and acquiescence.

If the discussion were limited to the concept proposed by the Commission, it was valid to consider that unilateral declarations could be effected solely by Heads of Government, foreign ministers and officials that had the necessary power or accreditation. He found it interesting to consider that other officials might also bind the State in the exercise on specific functions. However, if one accepted that thesis, the capacity to do so should be clearly limited to the purview of their competence.

Turning to the issue if State responsibility, he supported making a distinction between the categories of States affected by an internationally wrongful act. Matters connected with the protection of human rights should receive independent treatment. Once a distinction was developed, there should be specific provisions concerning reparations. The practice of the various human rights tribunals could provide valuable guidance in that area.

He supported setting a reasonable limit on reparations, based on the fundamental rights of the populations of a State that had committed an internationally wrongful act. It was necessary, however, to improve the drafting in order to depoliticize the relevant references. The obligation to pay interest should be spelled out in more detail, but he was not convinced that State practice or international law unanimously demonstrated the unequivocal obligation to pay interest in all circumstances. He therefore appreciated the optional formulation included. He noted the suggestion to eliminate the link between mandatory arbitration and countermeasures, saying that if the draft articles were adopted as a treat, it should be maintained.

Costa Rica viewed with concern discussions within the Commission on the theme of humanitarian intervention, he said. His country preferred that the issue be discussed among States and not in a body composed of experts acting in their personal capacities. Moreover, the discussion was unnecessary in the context of the draft articles on State responsibility.

NELSON GONZALEZ (Venezuela), speaking on reservations to treaties, said that the rules being elaborated by the Commission should conform to the Vienna regime on reservations to treaties. A guide to State practice to those reservations should be the end product of the Commission's work. He described as "very appropriate" the guideline that defined reservations and interpretative declarations.

It was not possible to elaborate rules on bilateral treaties, he said. Elaboration of new rules on such treaties would be tantamount to redrafting them.

On unilateral acts of States, he said the issue was sensitive in the context of international law. The second report of the Special Rapporteur was extremely important. The definition of unilateral acts should be finalized as soon as possible. He regretted that the Commission had not been able to gather all the necessary information it required. He hoped States would respond to the questionnaire to be circulated.

HANS WINKLER (Austria) said he favoured adopting the draft articles on nationality in relation to succession of States in the form of a declaration. He agreed that the Commission's work on the subject should then be considered finished. On reservations to treaties, he said some of the formulations suffered from definitions that were too detailed or else redundant.

Concerning unilateral acts of States, he said he was not convinced of the wisdom of taking the Vienna Conventions as a point of reference. He welcomed the progress made on codifying the jusisdictional immunities of States and their property. The merits of that exercise lay primarily in ensuring that the prevailing restrictive view on matters of State immunity was accepted more uniformly by the greatest number of States and their national courts.

He said it was striking how differentiated international law had become, and how the various fields of law known in internal affairs had gradually developed an external perspective. The substantial increase in the number of areas of law and regimes had resulted in a fragmentation of international law. That need not be considered a threat to a single and uniform concept of international law. Austria intended to propose that the Commission consider ways of avoiding future conflicts among norms and regimes. Also, he supported the Commission undertaking work in the field of international environmental law.

MOHAMED GOMAA (Egypt) reiterated his Government’s view -– with regard to reservations to treaties -– that the regime established by the 1969 Vienna Convention on the Laws of Treaties should be preserved. The distinctive characteristics differentiating the constituents of the international community should be respected. There was no reason for a distinct regime on reservations for one particular area of codification -– human rights -– while all others remained subject to general rules on reservations. No one should be misled by the fact that human rights constituted a “self-contained regime” as a pretext for a special reservations regime to be created. Self-contained regimes excluded more or less the application of the general consequences of wrongful acts.

While Egypt attached importance to the work of human rights treaty-monitoring bodies, those bodies should remain within the prerogatives of their respective mandates. It was courts of law that could determine the admissibility and effect of reservations. The comments received by the Commission from the treaty bodies did not reflect an accurate account of the legal regime of reservations to treaties.

Egypt hoped that the Special Rapporteur would consider interpretative declarations in the light of the different cultures that influenced the legal regimes of nations.

On State responsibility, he said the Special Rapporteur was right in seeking a solution in the structure of the draft that would create a physical link between the sections on “breach of obligations” and those on “preclusion of wrongfulness”. On the question of a plurality of States involved in the breach of an international obligation, he said that the Commission’s work would be undone if the draft did not cover that issue.

He said postponement of the Commission’s work on international liability for injurious consequences arising out of acts not prohibited by international law would give it an opportunity to reflect on the numerous questions raised in the Commission itself and by Governments. As regards jurisdictional immunities of States and their property, he said the Commission had made useful suggestions and alternatives. Its analysis of international practice would be useful in the proceedings of the working groups of the Sixth Committee.

ILYA ROGACHEV (Russian Federation) said his delegation supported the overall approach of the Commission in limiting rules to some aspects of the unilateral acts of States. Further, it was advisable for the Commission to refrain from a study of the unilateral acts of international organizations and he did not object to leaving out a study on acts that had no international consequences. There should be a distinction between political and legal acts.

He said the Commission should focus on the study of procedures that could create unilateral acts. The content of unilateral legal acts should not be set aside. There should also be a study on States expressing their will by silence.

SUN GUOSHUN (China), speaking on the unilateral acts of States, said it was necessary for the law on such acts to be codified and its progressive development promoted. It was difficult for precise rules and regimes to be established for acts that had numerous different aspects that might not have the same legal effects.

He noted that the Commission’s working group had defined "unilateral acts" as those intended to produce legal effects on the international plane, as opposed to acts that entailed only “acquiring international obligations”. That was encouraging progress, although there were still some problems. Acts intended to produce legal effects did not necessarily achieve the intended results. An appropriate explanation of the word “intention” should be made in the commentary. The word “autonomous”, which was deleted from the original report, should be retained.

He said unilateral acts of States were so widespread and numerous in international exchanges that it was impossible to codify all of them within a single legal instrument. Moreover, some were already regulated by international legal norms. A prudent approach should therefore be taken. China favoured an appropriately restrictive scope for the topic, with acts related to treaty law excluded.

He observed that many aspects of unilateral acts of States were related in various degrees to treaty law; consequently, the Vienna Convention on the Law of Treaties could be used as reference. Relevant provisions of that Convention could also be drawn upon during formulation of some procedural provisions, such as those concerning interpretation, correction, suspension and termination of unilateral acts.

BONIFACE OURAGA OBOU (Cote d’Ivoire), speaking on unilateral acts, specifically referred to interpretative declarations. In order to arrive at a better definition, the Commission should distinguish between declarations made with regard to bilateral treaties and those made regarding multilateral treaties. There were distinct legal regimes governing the two. The difference was in their nature and not simply a matter of degree. The legal nature of an interpretative declaration, that is, whether or not it had a legal effect, should be incorporated into its definition.

TEOMAN UYKUR (Turkey) said the particular character of unilateral acts, as distinct from treaties, should be taken into account in formulating governing rules. States acting unilaterally were not entitled to erode, to their own advantage, a particular balance that had been established by treaty provisions constituted upon the consent of parties. Unilateral acts were the most common instruments in day-to-day international relations. The subject became even more challenging when one considered the different types of unilateral acts.

Noting that heads of State and Government and foreign ministers were widely regarded as having the capacity to commit a State by means of a unilateral act, he said a restrictive approach should be followed in endowing other state officials with that capacity. In distinguishing between legal acts and declarations of a political nature, the notion of “intention of creating legal effects” was an appropriate criterion. He welcomed the circulation of the questionnaire seeking the views and practices of States; saying it would allow the Commission to depict the general tendencies and applications of States with respect to unilateral acts.

Concerning the admissibility of certain reservations to treaties, he said it was a questionable understanding that a State, which had made what other States parties considered an inadmissible reservation, should still be deemed a party to the treaty. That approach not only disregarded the actual consent of the State in question, it had negative implications for the basis of treaty law as well.

* *** *