RESERVATIONS TO TREATIES, DRAFT CONVENTION ON INTERNATIONAL LIABILITY TAKEN UP BY ASSEMBLY’S LEGAL COMMITTEE

Press Release
GA/L/3161

RESERVATIONS TO TREATIES, DRAFT CONVENTION ON INTERNATIONAL LIABILITY TAKEN UP BY ASSEMBLY’S LEGAL COMMITTEE

Debate Continues on Issues from International Law Commission Report

Issues relating to the elaboration of guidelines on practice of Reservations to Treaties and a draft convention on International Liability were highlighted this morning as the Sixth Committee (Legal) began discussion of the work of the International Law Commission on those topics.

The representative of Germany welcomed the extension of the period for objections to late reservations to Treaties from the traditional period of 90 days to twelve months by the Secretary-General, who was the most important depositary of multilateral treaties. The extension enabled governments to adequately analyze and assess late reservations. It also allowed for a dialogue between the State who formulated the “late reservation” and other contracting parties.

The representative of Italy said concerns over the protection of ecosystems pertaining to the relevant environments should be reflected in the Commission’s draft convention.

Also making statements on the new topics were the representatives of Spain, Guatemala, Republic of Korea and Sweden.

Earlier, the Committee concluded its discussion on the topic on diplomatic protection and unilateral acts of States.

The representative of the Russian Federation, speaking on the topic of unilateral acts of States, said the Special Rapporteur should start with elaborating general rules on the topic, as there were no instruments on the subject. Information about the practice of States should also be gathered for adaptation.

Statements were also made by the representative of Cyprus, Jordan, Bahrain, and Brazil. The observer for Switzerland also spoke.

The Sixth Committee meets again at 3 p.m. today to continue its debate on Reservations to treaties and International Liability.

Sixth Committee - 2 - Press Release GA/L/3161 21st Meeting (AM) 1 November 2000

Committee Work Programme

The Sixth Committee (Legal) met this morning to conclude its debate on the elaboration of rules on Diplomatic Protection and Unilateral Acts of States, being undertaken by the International Law Commission and to take up two other subjects also embodied in the Commission’s report -- Reservations to Treaties and International Liability (Prevention of Transboundary Damage from Hazardous Activities).

The Committee was also to discuss other decisions and conclusions of the Commission, from its last (fifty-second) session.

Reservations to Treaties

According to the report, the International Law Commission considered the fifth report of the Special Rapporteur, Alain Pellet, relating to alternatives to reservations and interpretative declarations, and to formulation, modification and withdrawal of reservations and interpretative declarations.

The Commission adopted five draft guidelines pertaining to reservations made under exclusionary clauses, unilateral statements made under an optional clause or providing for a choice between the provisions of a treaty and alternatives to reservations and interpretative declarations. The draft guidelines were accompanied by commentaries providing the necessary clarifications and examples

International Liability (Prevention of Transboundary Damage from Hazardous Activities)

The Commission established a working group to examine the contents and observations made by States on the draft articles on the topic, which were adopted on first reading in 1998. Subsequently, the Special Rapporteur, P.S. Rao, presented his third report containing a draft preamble and a revised set of draft articles on prevention, as well as the recommendation that they be adopted as a framework convention. The Special Rapporteur indicated that the draft articles essentially constituted progress development on the topic and sought to evolve procedures that would enable States to act in a concerted manner on the issue of prevention.

Additional issues considered by the Special Rapporteur’s third report included the scope of the topic, its relationship with liability, the relationship between an equitable balance of interests among States concerned and the duty of prevention, as well as the duality of the regimes of liability and State responsibility. The Commission considered the third report of the Special Rapporteur.

Statements

ANDREAS JACOVIDES (Cyprus) said the issues of diplomatic protection and unilateral acts were dissimilar. Diplomatic protection fell within the area of traditional and classical international law, while unilateral acts lay in uncharted ground. He recalled that, in 1960, as a graduate student and researcher at Harvard University, he had worked for several months surveying existing law on the right of a State to compromise, waive or settle claims on behalf of its nationals, in relation to a draft convention on State responsibility for injury of aliens. Revisiting the issue 40 years later, he had the feeling that there had not been very much change.

Despite the emergence of various dispute settlement mechanisms to which individuals had been given access, he said, diplomatic protection remained an important tool for the protection of individuals in the international arena. He sympathized with the view that diplomatic protection was a means of advancing human rights. The exercise of diplomatic protection was the discretionary right of a State. There was no obligation in international law on a State to present a claim on behalf of the injured individual.

Concerning article 2, he said forcible intervention was permitted in international law to protect nationals. He shared the view that the matter came under the broader topic of State responsibility, and that the use of force to protect nationals abroad should not be considered in isolation from the whole topic of the use of force and the relevant provisions of the Charter. In reference to article 3, he said it should be recognized that diplomatic protection was a right attached to the State, which it could exercise at its discretion.

Referring to article 4, he said the proposal that constitutional law clauses providing a right to diplomatic protection should be extended to international law found no basis in State practice. He said Cyprus had an open mind on the issues raised in articles 6,7 and 8. There was room for the International Law Commission to make a more substantial contribution in developing the relevant rules beyond the traditional customary law rules.

Turning to unilateral acts, he said he welcomed the progress made on the topic. Cyprus generally agreed with the reformulation of articles 1 to 7. Citing the great diversity in the practice of States, he said the Law Commission was engaged in providing more than a simple survey. He agreed with the definition of unilateral acts that focussed on those made with the intention of producing a legal effect. He also agreed with structuring the draft articles around a distinction between general acts and specific rules applicable to categories.

On reservations to treaties, he said that, while the relevant provisions of the Vienna Convention on the Law of Treaties provided basic rules, intervening developments over the years made it useful to develop a guide to practice for the regime.

MAHMOUD D HMOUD (Jordan) said that at this early stage of codifying and developing international law on diplomatic protection, it was crucial that States provide the Commission with guidelines on the approach it should take. The definition of diplomatic protection should clarify whether the injured person is natural, legal or both. A definition should include injury to legal persons, despite the legal complications that might arise from its inclusion. Diplomatic protection could be extended, in certain circumstances, to non- nationals.

Refugees and stateless persons did not have sufficient international protection under the current systems, he said. A refugee whose property had been illegally confiscated in a State other than the State of asylum did not have an efficient international mechanism to protect his/her rights. Similarly, a stateless person who had been tortured could receive the diplomatic or judicial coverage which would protect his/her basic human rights. It was time the international community ended that discrimination and provided an effective regime for the legal protection of the rights of refugees and stateless persons.

The use of force as an exceptional means for diplomatic protection was in contravention with the purpose and provisions of the Charter, he said. Furthermore, diplomatic protection doctrines had been historically abused by States, as a means to attacks other States, topple regimes and jeopardize the territorial integrity and political independence of weaker States. He supported the view that diplomatic protection was the right of a State, and not the individual.

On nationality, he said he supported the separation between the issue of nationality as an absolute right for a State that it could confer on any individual, and nationality in the context of diplomatic protection. Birth and descent were sufficient links between the State and the individuals. He preferred that article 6 be deleted, as there was not adequate proof in customary law to support the contention that a State could exercise protection on behalf of an injured national against another State of which the injured was also a national.

ILYA ROGACHEVE (Russian Federation), speaking on the topic of Unilateral acts of States, said there were no uniform rules on the practice of unilateral acts, and there was also no existing codification of different texts on the topic. The Special Rapporteur should, therefore, start with the elaboration of general rules. It would be wise to start with the gathering of information about the practice of States, and to find out how they could be adopted for general practice.

He also said that definition of unilateral acts should include an element indicating that such acts could have international legal consequences. He said the principle of estoppel should not be excluded from the elaboration of articles on unilateral acts.

HUSAIN M.AL-BAHARNA (Bahrain) said diplomatic protection might be exercised by a State on behalf of a national who had acquired his/her nationality by birth, descent or bona fide naturalization. His delegation agreed with the Special Rapporteur that the principle of effective or genuine link between a national and a State could not be considered as a rule in customary law applicable to cases not involving dual or multiple nationality. He said the principle of effective genuine link seemed to be limited in its application to cases of dual or multiple nationality only. Its application, accordingly, found little or no support in cases of diplomatic support falling outside the bounds of dual nationality.

There should be proof of an effective link between the State claiming diplomatic protection against the State on behalf of the injured dual national. In that way, he said the third State could give preference to the claim to diplomatic protection. He said the principle might also apply to two or more States that might jointly afford diplomatic protection to a dual or multiple national for a claim of injury arising in another State of which he was not a national.

It should be permissible for diplomatic protection to be afforded a stateless person by the State in which he or she had a lawful and habitual residence. He said the same principle should similarly be applied to a refugee who had a lawful and habitual residence in a State. No obligation was imposed upon a State in cases of diplomatic protection. States had the sole choice, and cases should be studied on their merits.

THOMAS BURRI, the Observer for Switzerland, said States had discretionary power to exercise diplomatic protection on behalf of their nationals. All States could decide whether to grant or refuse diplomatic protection upon determining it would be counter to a higher interest. Contemporary international law did not provide for the right of an individual, such a provision could only be found in domestic law.

Concerning article 2, he said the use of force was acceptable in some circumstances, such as when the protecting State had not been able to assure the safety of its nationals through peaceful means. However, the use of force did not represent a means of diplomatic protection. On nationality, he noted the provisions of article 5 that an individual acquired nationality by birth, descent or bona fide naturalization, and said he understood it was up to each State to decide its own conditions for granting nationality in the context of the exercise of diplomatic protection. He questioned the validity, though, of the introduction of the bona fide criterion, which he said seemed too vague. An individual could be deprived of protection by a State with which it had a close link, if the bona fide criterion were called into question.

A State could not exercise the right of diplomatic protection against a State of which the injured national was also a national, no matter what those links were, he said. However, such a rule would not exclude other protective measures being taken by the State of origin, especially in the case of serious and repeated violations of international law.

Referring to article 7, he said a person with dual nationality could benefit only if there were a close link. In the context of exercise of diplomatic protection, nationality should be determined by an effective link, as was stated by the International Court of Justice in the Nottebohm case. That principle had stood the test of time. The proposal for protection of refugees and stateless persons was justified because of the need for effective protection of those persons. However, intervention on their behalf should be limited to consular protection. BAENA SOARES (Brazil) said his delegation was glad that a consensus was emerging that the use of force should not be applicable in diplomatic protection. He noted that a person might apply for diplomatic protection when there was an abuse of human rights. He said that in previous statements in the Sixth Committee, his delegation had stressed the importance of discretion in provision of diplomatic protection.

On the topic of unilateral acts of States, he said his delegation acknowledged the complexity of the issue and the timeliness of the codification of articles on the subject. It was a vital exercise.

Touching on Reservations to Treaties, he said the authorities empowered to act on behalf of governments should be specified. Criteria chosen should be applied in a limited fashion and with great caution.

Reservations to Treaties

CHUSEI YAMADA, Chairman of the International Law Commission, introducing the topic Reservations to Treaties, said the draft guidelines completed the first chapter of the Guide to practice on "Definitions". He then highlighted the important issues addressed in them.

Draft guideline 1.1.8 "Reservations made under exclusionary clauses" referred, he said, to unilateral statements made under the so-called exclusionary opting or contracting out of clauses of a treaty. Those statements constituted reservations, he said.

Draft guideline 1.4.6 "Unilateral statements made under an optional clause", expressed the Commission's view that such statements were not reservations and, consequently, were outside the Guide to Practice. On draft guideline 1.4.7 , entitled "Unilateral Statements providing for a choice between the provisions of a treaty", he said the Commission had reached the conclusion that such statements did not constitute reservations and were outside the scope of the Guide to Practice.

Another category covered by the draft guideline was that of treaty clauses offering a choice between the provisions or parts of a treaty because they oblige the parties to choose a given provision or, alternatively, another provision. The practice was, however, less common and could be found mainly in some conventions of the International Labour Organization (ILO), he stated.

The Chairman then touched upon a section of the first chapter of the Guide to Practice, entitled "Alternatives to reservations and interpretative declarations". It was the Commission's view that it would be useful for the consideration of the definition of reservations and interpretative declarations to be linked to that of other procedures aiming at the same objective.

The draft guideline 1.7.1, entitled "Alternatives to reservations" addressed the question of those procedures that might involve the insertion in a treaty of restrictive clauses, escape clauses, derogation or "bilateralization" procedures purporting to limit its scope or application or the conclusion of an agreement under a specific provision of a treaty.

The last draft guideline adopted at the Commission's session was guideline 1.7.2, "Alternatives to interpretative declarations", the Chairman said. It covered the alternative procedures, by which States and international organizations could specify or clarify the meaning or scope of the provisions of a treaty. The Commission was unable to consider -- due to lack of time -- the second part of the Special Rapporteur's fifth report, which dealt mainly with the formulation of reservations and interpretative declarations.

Draft guidelines 2.2.1 and 2.2.2 dealt with questions of reservations formulated when signing a treaty or when negotiating, adopting or authenticating the treaty. The Special Rapporteur was of the view that such reservations must be formally confirmed by the reserving State or international organization when expressing its consent to be bound by the treaty, the Commission Chairman stated.

Draft guideline 2.2.3 states that reservations formulated when signing an agreement did not need any subsequent confirmation. If a treaty provided that a reservation might be made upon signing, the reservation did not have to be confirmed at the time of the expression of consent to be bound, and that was the substance of draft Guideline 2.2.4, the Chairman said.

The Special Rapporteur also discussed the importance and difficult problem of late reservations -- reservations formulated after the expression of consent to be bound, according to the Chairman. He said the Special Rapporteur proposed, in draft guideline 2.3.2, that late reservations might be unanimously accepted if no objection had been made by any contracting party within a 12-month period following the date on which the reservation was received. If, however, an objection had been made, the treaty, under guideline 2.3.3, should enter or remain in force in respect of the reserving State or international organization without the reservation.

The Chairman said the Commission would welcome any comments or observations on the draft guidelines pertaining to the topic, including the 14 draft guidelines which had not yet been discussed.

International Liability

The Chairman then turned to the draft on International Liability for Injurious Consequences arising out of acts not prohibited by international law (Prevention of Transboundary Damage from Hazardous Activities).

He said the Special Rapporteur in presenting his third report had indicated that the draft articles essentially constituted progressive development on the topic and sought to evolve procedures that would enable States to act in a concerted manner on the issue of prevention.

Additional issues covered by the Rapporteur's third report included the scope of the topic, its relationship with liability, the relationship between an equitable balance of interests among States concerned and the duty of prevention, as well as the duality of the regimes of liability and State responsibility.

The Chairman said particular note should be taken of the issue of whether to continue to address the sub-topic of hazardous activities within the broader categorization of "acts not prohibited by international law", since the retention of the phrase might not be appropriate to define the scope of the regime on prevention.

Most Commission members were of the view that, with some drafting changes, the articles were ready for adoption, the Chairman said. It was stated that the draft articles were a self-contained set of primary rules on risk management or prevention, and that they would not prejudice any higher standards, nor more specific obligations under other environmental treaties. The Commission concurred with the proposal by the Special Rapporteur that the draft articles be adopted as a framework convention, the Chairman said.

The Commission decided to refer the draft preamble and the revised set of draft articles to the Drafting Committee, he added. He also said that comments by governments on the draft provisions would be most useful in guiding the Commission's work on the topic.

The Chairman said the Commission, on the recommendations of the working group on the long-term programme of work, selected the following five topics for future work: responsibility of international organizations; effects of armed conflicts on treaties; shared natural resources of States; expulsion of aliens; and risks ensuing from fragmentation of international law.

He said that in selecting those topics, the Commission and its working group was guided by the criteria dealing with the utility and practicality of the topic and its codification.

On the length and duration of its future sessions, he said the Commission was recommending that the requirements of its work made it essential to hold a 12-week split session next year at the United Nations Office in Geneva.

He said the Commission, as in the past, cooperated with other bodies, including with the Inter-American Juridical Committee, the Asian-African Legal Consultative Committee and the European Committee on Legal Cooperation, as well as the Committee on Legal Advisers on Public International Law.

The thirty-sixth session of the International Law Seminar was held at the Palais des Nations with 24 participants of different nationalities, mostly from developing countries. So far, 807 participants, representing 147 nationalities, had taken part in the seminar since its inception in 1965, he said, adding that 461 had received fellowships. He urged governments to make contributions for the organization of the seminar.

REINHARD HILGER (Germany) appealed to the Commission not to lose sight of the fact that the majority of real problems generated by reservations and their consequences, including possible objections, as well as problems caused by interpretative declarations, did not involve the question of their definition. He welcomed the inclusion of a guideline on alternatives to reservations, saying those alternative procedures could protect the integrity of the treaty, while at the same time allowing a maximum number of States to become parties, even when not all of them were able to assume full treaty obligations. He hoped the Commission’s work would cause States to attach greater importance to alternatives to reservations. It was in the negotiating phase that creative solutions should be found and incorporated into the text of multilateral treaties so that reservations with their negative consequences could be avoided.

He said he welcomed the fact that the Secretary-General, as the most important depositary of multilateral treaties, had extended the traditional 90-day period for objections to late reservations to 12 months. The extended time period enabled governments to adequately analyze and assess late reservations, and it allowed for a dialogue between the State who formulated the “late reservation” and other contracting parties. The new practice of the United Nations Treaty section of distributing depositary notifications electronically seemed to have finally brought an end to the serious problems caused by the long delays.

In demonstrating the importance of proper legal handling of modifications of reservations, he referred to a recent case, in which the German Mission had received a notice -- dated almost three months earlier -- just two weeks short of the 90-day deadline. An examination of the modification revealed that it constituted not a partial withdrawal, but new late reservations. The German objection, which had been conveyed in a timely manner from receipt, was treated as late and listed as a mere “communication”. The example proved the need for continued dialogue with the United Nations Office of Legal Affairs and, particularly, its Treaty Section on the handling of past and present modifications of treaties.

As to transboundary damage resulting from hazardous activities, he said the draft provided for a reasonable balance of both the economic interests of States of origin and the interests of States likely to be affected. Prevention should be the key principle of the draft articles, which ought to contain clear references to international law.

ATTILA TANZI (Italy), speaking on International Liability, said his delegation joined the consensus that the Commission should first deal with prevention and later with the consequences of harm. The draft articles should cover, next to significant transboundary harm, also harm caused in areas outside national jurisdiction. Language to that effect should be inserted in article 1, and in those articles required by drafting consistency, with special regard to article 3 on prevention. He said that would bring the draft articles into line with the authoritative assessment by the International Court of Justice, to the effect that the general principle of prevention of environmental harm applied specifically to regions over which no State had sovereignty.

He said his delegation, like others, thought that concerns over the protection of the ecosystems pertaining to the relevant environments should be reflected in the draft. Also, reference should be made to both public and private sector activities in the draft articles 1 or 2, as activities referred to were undertaken mostly by the latter. He said the phrase “not prohibited by international law” in the full title of the text should be retained

Italy shared the concerns expressed by others over the exclusion of creeping pollution from the scope of the draft articles. Significant transboundary harm, resulting over a period of time in combination with multiple sources, should be subject to the obligation of prevention. The reasonableness of such an obligation depended on its being an obligation of conduct and not one of result, he said.

He said his delegation understood the need for a differentiated application of the due diligence obligation, proportional to the economic and technological development of the States concerned. To enhance and harmonize the prevention capacity of individual States, he said, the provisions on cooperation and implementation of articles 4 and 5 should be further articulated and more stringent rules provided.

Italy concurred with Governments which, in written comments and observations, had pointed out the near impossibility of assessing the potential transboundary harm of a proposed activity without the full environmental impact being assessed. He invited the Commission to consider providing guidance to national legislators on criteria for making an environmental impact assessment To that end, it would be appropriate to draw on existing conventional practice, especially the practice developed at the multilateral level in the framework of the United Nations Economic Commission for Europe (ECE) process.

Cooperation between States would be crucial in a liability regime on the consequences of harm that had occurred despite all appropriate measures taken. However, he said, the formula should not be taken to imply that any harm was negotiable. He reiterated his delegation’s view that the Commission should not consider its tasks fulfilled without first dealing with liability issues proper. The Commission’s draft articles, with appropriate refinement, would represent a significant achievement in the field of risk management, an achievement that should not be wasted. Italy would be open to considering the adoption of a separate instrument on prevention, on the understanding that it would be the basis for continuation of the Commission’s work on the topic.

AURELIO PEREZ GIRALDA (Spain) said that to avoid confusion, the commentary on the draft guidelines on reservations to treaties should contain a reference to certain practices, such as the “opting out and opting in” principle. He looked forward to an examination of the validity and effects of reservations as objections to reservations, as they were of great interest to practice. He expressed regret that the Commission had not had enough time yet to study the formulation, modification and withdrawal of reservations and interpretative declarations.

The late formulation of reservations was a delicate subject that affected legal security and certainty in treaty relations among States. They should be of a clearly exceptional nature and should be prohibited, except when the State had received the unanimous consent of the other contracting parties. There was the risk that late reservations could, in reality, take the form of an amendment to a treaty. Spain agreed with the opinion of the Special Rapporteur that late reservations formulated without previous consent could be admissible with the unanimous consent of all parties.

Turning to transboundary damage, he said that while he agreed in general with the approach taken by the Commission, the codification of the content and scope of prevention gave rise to complicated problems concerning international responsibility for harmful consequences for acts not prohibited by international law. It was necessary to bear in mind the connection between the two issues, and to be conscious of the fact that decisions adopted in connection with prevention would necessarily relate later on to the treatment of liability.

ROBERTO LAVALLE-VALDES (Guatemala) said it was possible to improve on some of the provisions of the draft convention on prevention of transboundary damage from hazardous activities. The phrasing in article 1 should refer not to “activity”, but rather, to all activities. He was surprised by the use of the word “significant” in article 2. Article 3 should be broadened to include that the State of origin should follow technological changes and scientific advances. He did not agree with drafting of the phrase in paragraph 3 of article 10 “without prejudice to”, since it was adversarial.

He said he supported the proposal by Netherlands to substitute the words “so that protection was obtained” in article 15. Article 18 was confusing, because it did not distinguish between treaties and customary norms which came before and after the convention. It could have the result of considerably weakening the convention. Referring to article 19, he said it was important for a commission to have powers of reconciliation, since there could obviously be disputes relative to the convention. Provisions on the composition of the commission could be based on paragraphs 5 to 9 included in article 33 about the non-navigational uses of waterways. He favoured the adoption of a convention that covered not only prevention, but also the question of liability.

CHOUNG II CHEE (Republic of Korea) addressing the topic, reservations to Treaties, said the International Law Commission should engage in norm-creating work by adopting guidelines that prohibited interpretative declarations. His delegation would like to see a statement to that effect, such as “conditional interpretative declarations to a treaty are invalid when a treaty prohibits reservations to itself” added to the draft guidelines ( 1.3.3). An arbitral tribunal or court of law might eventually decide whether a unilateral statement amounted to a conditional interpretative declaration and reservation, or remained as a mere interpretative declaration, he said,

On International Liability, he said inserting a provisions in the preambular clause of the draft convention text (paragraph 5) in the main body would strengthen the cause of the instrument. He called for a clarification of the two types of harm mentioned in the draft text, namely, “significant harm” and

“disastrous harm”. On the question of environmental impact assessment, he said a set of timeframes should be added to a relevant provision of the (article 7) to ensure a speedy implementation of a monitoring policy to prevent the risk of transboundary harm.

He said the inclusion of the phrase “acts not prohibited by international law” was unfortunate. If any act of a State constituted the risk of causing damage to neighbouring states, such a risk should not be taken by the State, according to the opinion of the International Court of Justice in its 1966 Nuclear Weapons Case. It should therefore be noted, he said, that the risk of transboundary atmospheric pollution was particularly serious.

BERTIL ROTH (Sweden), speaking on behalf of the Nordic countries, said those countries supported the idea of mentioning in the guide to practice, alternatives to reservations. They had no fear that the guide would assist States in limiting their treaty obligations by providing them with a “how-to” manual on how to avoid maximum commitment. There was nothing wrong in showing what was, in fact, State practice. Reservations and their alternatives were useful, as their employment might increase the number of States willing to become party to a particular treaty. The main concern of the Nordic countries was the fact that States make reservations which were obviously not compatible with the object and purpose of a treaty, or reservations which were unspecified, leaving other States in doubt about the actual scope of the reservations.

He welcomed the taking up of the issues of how to formulate, modify and withdraw a reservation or interpretative declaration, including the question of how to treat so called “late” reservations. The issue modified and late reservations was a complex area where an analysis by the Commission could be of particular interest. The Nordic countries also looked forward to an analysis of inadmissible reservations and objections to such reservations.

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