LEGAL COMMITTEE DISCUSSES WAYS TO IMPROVE COOPERATION WITH INTERNATIONAL LAW COMMISSION

Press Release
GA/L/3131

LEGAL COMMITTEE DISCUSSES WAYS TO IMPROVE COOPERATION WITH INTERNATIONAL LAW COMMISSION

Proposals Include Informal Meetings with Experts, Split Sessions

A proposal to rethink the way the Sixth Committee (Legal) provides input to the work of the International Law Commission -– calling for Committee members to spend less time in formal debate on the Commission’s annual report and more time in informal meetings with the Commission’s Special Rapporteurs –- drew widespread support from speakers in the Committee this morning.

The representative of Bangladesh, for example, said the opportunity for Committee members to engage in dialogue with the “eminent personalities” serving as Special Rapporteurs would significantly reduce the effects of the resources deficit that weighed so heavily upon some States.

The discussion took place as the Committee concluded its annual consideration of the Commission’s report. The proposal had been made earlier in the debate by a United Kingdom legal adviser -– Sir Franklin Bernan, a 30-year veteran of Sixth Committee debates. This morning, the chairman of the International Law Commission characterized Sir Franklin’s remarks as “thoughtful and refreshing”.

The Commission’s Chairman said that the United Kingdom’s statement had raised a number of fundamental questions that both the Committee and the Commission might wish to think over. The Commission could not be as effective or useful without substantial input from Governments, whether through their statements in the Committee or their written comments. The Commission’ experts relied heavily on case law and State practice, but turned to States more specifically for the injection of political reality into their work. He called the Sixth Committee a “sounding board” for the Commission to test ideas and proposals before pursuing a particular policy approach.

By the same token, several speakers urged the Commission to take due note of the comments of Committee members regarding issues before the Commission. Germany’s representative said that careful evaluation of such comments might obviate the need for the detailed questionnaires circulated by the Commission. He suggested that, since Governments were known to forward lengthy questionnaires to academic institutions

Sixth Committee - 1a - Press Release GA/L/3131 28th Meeting (AM) 5 November 1999

for completion, the Commission should increase its direct cooperation with such institutions.

Also concerned with the Committee’s working methods was the representative of Bahrain, who said prevention of transboundary harm could not be examined in isolation from principles concerning liability. The fact that international conventions dealing with transboundary harm yet to put into place a liability regime should not lead the Committee to reject or suspend consideration of the topic.

In a similar vein, the representative of Italy said prevention and liability were two equally essential aspects of international legislation relating to the exercise of economic and technological activities that were lawful, per se, but involved a high risk of environmental damage. To develop one aspect without the other would leave the project incomplete.

The Commission’s proposal to split its work into two sessions was challenged by the representative of Germany, who could support the initiative if resulted in increased attendance and productivity, but was concerned that it would entail an additional cost of $100,000 per year - - an amount equivalent to the salary of a Secretariat legal officer, he noted. He wondered whether a shorter total number of weeks allocated between the two sessions would balance the budget.

In response, the Secretary of the Committee said the additional cost of split sessions would total $105,230. One week of meetings entailed approximate costs of $59,000. More detailed information on the implications of splitting the Commission’s session, if approved by the Sixth Committee, would be provided by the Secretariat. Asked about various options, including that of holding one of the short sessions in New York, he promised to return to the Committee with accurate information.

In the procedural discussion that ensued, several speakers suggested that the budgetary implications of the Commission’s work were better left to the Fifth Committee (Administrative and Budgetary). Others, however, felt that any Committee that made recommendations to the General Assembly must take such issues into account in its decision- making process.

Speaking in the debate were the representatives of Greece, Czech Republic, Israel, Germany, Brazil, Bahrain, Russian Federation, Bangladesh, Italy, Kuwait, Portugal, Cuba and Haiti. The Observer for Switzerland also made a statement. The Chairman of the International Law Commission and the Special Rapporteur on Unilateral Acts made concluding remarks on the discussion.

The Committee will meet next on Thursday, 11 November at 10 a.m., to review the Statute of the Administrative Tribunal of the United Nations.

Committee Work Programme

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

MARIA TELALIAN (Greece) speaking first on State responsibility, said the adoption of draft articles in the form of a convention would greatly contribute to the prevention of internationally wrongful acts. She agreed with narrowing the application of article 27, on aid or assistance to a State, so as to entail responsibility of the State that had assisted another State in performing a wrongful act. The issue of countermeasures demanded close attention, in view of its serious legal implications. Useful guidance could be found in the judgements of the International Court of Justice. The legal limitations of countermeasures should be taken into account when examining the issue in the context of circumstances excluding wrongfulness. The taking of countermeasures should not be left to individual States, but rather to the Security Council acting under Chapter VII of the Charter.

On reservations to treaties, she said the inclusion of unilateral declarations in the definition was a positive step. Across-the-board declarations that excluded the application of the entire treaty under certain circumstances were real reservations and should be treated as such. Articulating the distinction between reservations and unilateral declarations was very important. Reservations to treaties, and in particular human rights treaties, raised many difficult and controversial questions, mostly related to their admissibility. The confusion and uncertainty that existed in relation to the system of compatibility and opposability established by the Vienna Convention needed to be addressed on a priority basis.

She said the draft on nationality in relation to the succession of States should take the form of a declaration. She noted that the articles were drafted along the lines of national legislation governing procedural issues on nationality rather than as rules or standards of international law. The right of third States to intervene in a matter over which they had no competence should not be included in the text. She also questioned some aspects of the right of option that was covered in the text.

On liability for injurious consequences, she said that she had supported the decision to focus first on the question of prevention of transboundary harm before embarking on the issue of compensation for harm caused. However, she stressed, the separation was only temporal. Any international instrument dealing with prevention should also include the duty of reparation for damage caused.

MILAN DUFEK (Czech Republic), speaking on unilateral acts of States, said that information on State practice was necessary for the Commission’s work in that field. The comments of States would have a positive impact on the quality of the Commission’s study. The scope of the study should still be confined to unilateral acts of States.

The Czech Republic favoured the use of the Vienna Convention on the Law of Treaties as the basis for drafting articles on unilateral acts of States. However, he said, it had misgivings about the provision in the Commission’s draft text relating to expression of consent. It was not convinced that the Commission should abide strictly by the Vienna Convention in this instance. All essential rules on expression of consent could be derived from the definition of unilateral acts.

On the question of definition, he preferred the term “ unilateral act” to “unilateral declaration”. He said there was no need for the provision concerning the capacity of States to formulate unilateral acts, as its content was self- evident.

EHUD KEINAN (Israel) said that any attempt to classify unilateral declarations within strict categories would run counter to actual practice in the international arena, with the inevitable result that practical ways would have to be found to bypass the restrictions. Therefore, it was appropriate to limit the scope of the topic, and address it with the utmost care, so as not to impose rules with which States would not be able to comply.

On the issue of definition, he said unilateral acts should not be subject to formalities. It would be inappropriate to use specific formal criteria to characterize a binding legal declaration. Emphasis should be placed on defining unilateral acts in terms of the circumstances from which the legal nature of the act could be inferred. The expression of will should demonstrate the intention of acquiring or maintaining international legal obligations or rights. He stressed that only when the addressee of the act had been directly notified by the performing State, could the existence of a solid intention to create legal effects be inferred, he said.

For a unilateral act to produce international effect, he said, it would have to be formulated by a representative empowered to engage the State in international obligations, such as a head of State, head of Government of foreign Minister. Other representatives, such as ministers, diplomats and official experts accredited to act on behalf of the State, should not be considered as competent State organs for the purpose of making legally binding unilateral acts. Utmost caution should be taken in defining this element.

ERNST MARTENS (Germany) agreed that it was necessary to identify basic issues for a study on unilateral acts of States and to try to gather evidence of State practice. There was room for improvement in the definition of unilateral acts. The circumstances under which a unilateral act by a State created legal rights and obligations had to be made sufficiently clear. There should be a focus on State practice in order to distinguish between unilateral acts intended to create legal effects and acts made for political purposes only.

Concerning the suggestion of split sessions for the Commission, he said he might be able to support the idea if it increased attendance and productivity. However, he had heard that it would cost an additional $100,000 -- an amount equivalent to the yearly salary of a Secretariat legal officer. That added expense could be partially offset if the Commission’s sessions were reduced by one week to 11 weeks of meetings instead of 12. Both the Fifth (Administrative and Budgetary) and Sixth Committees should be fully aware of the financial implications of split sessions. He asked the Secretariat to provide the Committee with detailed information on the financial implications.

As the Committee was primarily responsible for providing guidance to the Commission, he said, he trusted that the comments of States in the Committee regarding questions posed by the Commission would be duly noted. The careful evaluation of States’ comments in the Committee might also render the circulation of extensive detailed questionnaires unnecessary. In a number of cases, Governments had forwarded such questionnaires —- in extreme cases, up to 30 pages —- to universities and other academic institutions, which had then tried to answer them. He proposed that, instead of presenting Governments with extensive lengthy questionnaires, the Commission should increase its direct cooperation with the relevant academic institutions.

BEATO SOARES (Brazil) said the concept proposed by the working group for the Commission’s study of unilateral acts of States contained indispensable elements for a definition of those acts. The Commission’s interpretation of unilateral acts should be one of the issues to be considered in the short-term.

Brazil believed that the Commission, in its study, should retain the notion of knowledge of a unilateral act by another State or international organization through publicity. Agreed declaration was the best instrument in unilateral acts. The concept of reservation should not be introduced in any text on unilateral acts. He welcomed the decision to request the Secretariat to prepare a typology of all the forms of unilateral acts in the practice of States. The questionnaire was well formulated and Governments should cooperate by responding to it, he said. Prompt responses would help the Commission to carry out its work as quickly as possible.

He likewise urged that Governments should respond to the questionnaire on prevention of transboundary hazards to enable the Commission to complete its work on liability.

HUSAIN M. AL-BAHARNA (Bahrain), speaking first on nationality in relation to succession of States, expressed the hope that the Commission would revive the matter of nationality of legal persons in the future as it would have the benefit of clarifying a broader area of the law on the succession of States. He commended the adoption of certain draft articles which highlighted human rights principles that had been reflected in a number of human rights instruments.

The topic of reservations to treaties formed one of the fundamental aspects of international law, and the work of the Commission represented a great stride in that area, he said. While he had no substantive objections to the draft, he recommended some revisions. The guideline 1.1.1, on the object of reservations, could give rise to some confusion; the first two lines should be redrafted. Guideline 1.3.3 also might be clearer if it were divided into two guidelines.

Turning to unilateral acts of States, he favoured a restrictive approach to the topic. Unilateral acts, as distinct from political acts, should be those acts or statements that produced legal effects or gave rise to legal consequences. There was also a general view that the Commission’s work should be limited to the acts of States and not look at acts of international organizations. The study should deal strictly with those autonomous unilateral acts of States that were formulated with the intention of creating, by themselves, international legal effects or international obligations for such States. Excluding unilateral acts giving rise to international responsibility would avoid any possible redundancies with respect to the subject of state responsibility.

Bahrain was among those that had emphasized the need for the continuation of work on the liability aspect of transboundary harm, he noted. Prevention could not be determined in isolation from principles concerning liability. The fact that many international conventions dealing with transboundary harm had not yet succeeded in putting into place any regime of liability, should not lead the Committee to reject the topic or suspend an attempt to deal with it. Encouraging positive steps were being taken by the international community towards the evolution and formulation of positive norms and rules in relation to that issue.

ILYA ROGACHEV (Russian Federation), speaking on international liability for injurious consequences arising out of acts not prohibited by international law, said a State responsible for damage should be held responsible. Standards on prevention of damage could not be the same for all countries and those for developing States should be lower because of their economic situation. Requirements for due diligence in preventing harm should be applied.

Universal rules on liability could not be established without jeopardizing the regime of prevention and that of avoidance of liability. He said work on liability should be suspended until the Commission completed a second reading of the draft articles on prevention.

A.K.H. MORSHED (Bangladesh), endorsed the suggestion made earlier in the debate that meetings should be organized to permit Committee members to enter into dialogue with Special Rapporteurs, said the idea would be particularly helpful. It would give a chance to engage eminent personalities and in so doing significantly would reduce the effects of the resources deficit that weighed so heavily upon some States.

On the draft articles on nationality in relation to succession of States, he particularly appreciated that the right of option had been incorporated as an indispensable element. That helped mitigate the difficulties posed by the notion of habitual residence. The untempered application of the presumption of nationality based on habitual residence could hit whole groups of persons with the force of a virtual diktat. He was flexible on the final form of the draft articles, but noted that a declaration had the merit of being capable of being brought to an early conclusion.

The topic of State responsibility was as fundamentally important as it was difficult, he said. Bangladesh would address the points on which the Commission had sought views when the structure of the draft articles emerged more clearly. In the meantime, however, the report’s account of the dialogue between the Special Rapporteur and the Commission had been very instructive. He referred to paragraph 140, on the obligation not to torture individuals, saying the analysis could be extended beyond the field of human rights and the treatment of aliens to obligations in other fields.

On the issue of international liability, he agreed that the elaboration of a liability regime, along with a prevention regime for transboundary harm, was at the core of the Commission’s mandate.

MAURO POLITI (Italy) said the concept of unilateral acts on which the working group had agreed retained the essential elements to guide the Commission’s future study and collection of information on State practice. He expressed general satisfaction with the definition but would have preferred inclusion of a specific reference to the autonomous character of a unilateral statement.

He agreed that, in the present phase of work, the examination should be limited to those acts which were also unilateral declarations but said the Commission should not be precluded from considering at a later stage other less formal expressions of the will of a State. A catalogue of the different kinds of unilateral acts found in State practice should also be prepared. Information from the questionnaires would be extremely useful in that task.

He said that work on international liability was at a crucial stage. Once the draft articles on prevention were finalized, work on liability should resume promptly, in order to carry out fully the Commission’s mandate on the topic. Prevention and liability were two equally essential aspects of international legislation relating to economic and technological activities that were lawful, per se, but involved a high risk of environmental damage. To develop one aspect without the other would leave the project incomplete.

Effective dialogue between the Commission and the Sixth Committee was crucial to increasing the chances of successful and concrete outcomes from the Commission’s work, he continued. The debate on the Commission in the Committee was now more structured and focused than in the past, as a result of improvements in the report, and efforts made by Committee members. The presence of Special Rapporteurs during the debate was also helpful. Emphasizing the importance of the Commission’s consultations with a range of institutions an individuals, he praised its increasing cooperation with such bodies as the International Court of Justice, legal advisors for the Council of Europe, the Inter-American Juridical Committee, the Asian-African Legal Consultative Committee and the International Committee of the Red Cross.

On the question of a split session, he said that Italy would maintain a flexible, need-based position on the duration and nature of the Commission’s sessions. He looked forward to an assessment of the outcome of the first such session, to be held in Geneva next year.

TAHANI AL-NASSER (Kuwait) said work on State responsibility should be based on the 1969 Vienna Convention on the Law of Treaties. The Commission should be flexible in dealing with the matter and should complete its work as soon as possible. She supported the elaboration of a guide on State practice with respect to reservations. The criteria for reservations should be reformulated.

On jurisdictional immunities of States and their property, she underlined the importance her country attached to the question of state sovereignty.

She said the Commission should postpone consideration of the topic of international liability for injurious consequences arising out of the acts not prohibited by international law until it had completed its second reading of the draft articles on the subject.

JOAO MADUREIRA (Portugal) urged the Commission to undertake and conclude as soon as possible a study of the question of inadmissible reservations and their effects.

It was likewise essential that the appropriate legal principle be established to make it a duty for States to pay compensation in cases of transboundary harm, he said. The topic of international liability for injurious consequences arising out of acts not prohibited by international law should be dealt with as a unit. The Commission should proceed with the question of liability, taking into account the work of its previous Special Rapporteurs and its 1996 text. Portugal saw no valid reason to wait until the Commission finalized the second reading of the draft articles on the regime of prevention before dealing with other aspects of the topic. He said questionnaires submitted by the Commission represented a dialogue between it and Governments; the latter should be encouraged to respond to them. The Commission should help national authorities to complete the questionnaires, which should be included in the Commission’s home page on the Internet.

SORAYA ELENA ALVAREZ NUNEZ (Cuba) said the issue of State responsibility was particularly important to Cuba. The work of the Commission on the topic should culminate in a convention. The creation of norms and mechanisms that allowed States to seek and acquire reparation for damage caused by States in violation of their obligations under international law would be a significant contribution towards the peaceful settlement of disputes and the progressive development of international law. She acknowledged the progress that had been achieved in the redrafting of the articles, but said that the proposals embodied in the 1996 draft articles had been the result of many decades of work; any changes to them should be approached with caution.

There should be a special regime for violations of extreme gravity, she said. She supported retaining article 33 on a state of necessity, in its present form. She expressed concern that a reference in article 34, on legitimate self-defence, might provide a loophole for reinterpretation of the language of the Charter. As for countermeasures, no matter how tightly regulated they might be, they tended to aggravate the differences between States. In many cases, small and developing countries were not in a position to apply countermeasures.

Turning to reservations to treaties, she said the Vienna convention's regime on that subject should not be analyzed or dissected; it was important to preserve its integrity. The issue of international liability was complex but topical, given the economic implications for States. It was necessary to codify norms to ensure that States bore the consequences for damage caused by their dangerous activities. She shared the view that not only subjects who carried out dangerous activities should adopt the norms of prevention; so should those operating under the State’s jurisdiction, who should assume the same obligations.

On the issue of nationality in relation to succession of States, she said the establishment through the draft articles of generally accepted norms constituted an essential precondition for the promotion and protection of fundamental human rights. She supported the adoption of the text as a declaration.

The work of the Commission on jurisdictional immunity of States and their property should accelerate the process of codification in that area, she said. She supported the adoption of the draft articles in the form of a convention, which she hoped would be broadly accepted by all States and would take into account the commercial needs of developing countries. The future codification of rules on unilateral acts of States would facilitate the development of friendly and cooperative relations among States in this period of globalization, she said.

BOCCHIT EDMOND (Haiti) commended the working group for its work on nationality in relation to succession of States. He acknowledged the right of individuals to nationality as enshrined in the Universal Declaration of Human Rights and in instruments such as the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. Statelessness should be avoided. Individuals should be left to decide their choice of nationality.

He said that adoption of the draft articles on nationality by the General Assembly as a declaration would make it easier for States to adopt uniform rules. Meanwhile, the draft articles on jurisdictional immunities of States and their property, were a good basis for future work on the topic, he said. The question of State responsibility was an important topic that deserved in-depth study. Considerable progress had been achieved, he said, noting that there had been eight reports by the Special Rapporteurs.

VALENTIN ZELLWEGER, the observer for Switzerland, said that the draft guideline that limited the obligations of the author of an interpretative declaration as not absolute; it merely repeated one aspect of the declaration of reservations as it stood in the draft guideline. It would be a good idea to insert an explanatory footnote into the body of the definition of interpretative declaration.

He said there was a common element in unilateral declarations that did not fit with the purposes of the draft guideline to practice. He noted that text had originally been conceived as a working document, a reference that States could consult in their practice.

He proposed a modification to a provision of the draft guideline so as to delete the phrase, “which did not enter into the field of the current practice”. That would restore the definition of unilateral declaration to a positive form.

VICTOR RODRIGUEZ CEDENO, Special Rapporteur for unilateral acts, said the relationship between the Committee and the Commission was fundamental to the work of the Commission. The topic was a complex one; the Commission would take the statements of Committee members into account and incorporate them in its work.

In response to the proposal for greater interaction between Committee Members and Special Rapporteurs, he said that at next year’s session of the Assembly, the Secretariat should organize such consultations. There could be more informal meetings that would allow for greater dialogue. Nevertheless, he urged Governments to respond positively to the Commission’s questionnaires as they were key to the close relationship that should exist between the Committee and the Commission.

Closing statement by Commission Chairman

ZDZISLAW GALICKI, Chairman of the International Law Commission, in a closing statement said that the Commission would not be effective or particularly useful without substantial imput from Governments, whether through their statements in the Sixth Committee or in written comments. The Commission worked as a group of experts, making every effort to be objective and relying on case law, State practice and other sources of international law. That was essential for laying down strong legal grounds for the codification of any subject.

But projecting law for the future required more, he said. It required the consideration of political reality, and that was what States should bring to the work of the Commission. The Sixth Committee in some ways was a sounding board for the Commission to test ideas and proposals before pursuing a particular policy approach on a project. He expressed gratitude to the Sixth Committee for the attention it had paid to the Commission’s reports. He urged Governments to reply as quickly as possible to the Commission’s questionnaires sent to them.

He described the statement made by the United Kingdom’s representative, on the interaction between the Commission and the Sixth Committee, as very thoughtful and refreshing. That statement had raised a number of fundamental questions which both the Committee and the Commission might wish to think over. The momentum of work on the draft articles on nationality in relation to succession of States should not be lost, he said, urging continued efforts to have it adopted by the General Assembly as a declaration.

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