STUDY OF LEGISLATIVE ACTIONS WHICH IMPEDE FREE TRADE, MOVEMENT OF CAPITAL IS CALLED FOR IN LEGAL COMMITTEE

Press Release
GA/L/3162

STUDY OF LEGISLATIVE ACTIONS WHICH IMPEDE FREE TRADE, MOVEMENT OF CAPITAL IS CALLED FOR IN LEGAL COMMITTEE

Discussion Continues on Law Commission Report On Reservations to Treaties, International Liability Questions

Libya this afternoon urged the International Law Commission to include in its future work a study of the legislative acts of States which impeded free trade and free movement of capital, as the Sixth Committee (Legal) continued its discussion of the Commission’s elaboration of instruments on reservations to treaties and international liability.

The representative of Libya said the Commission should also add to its future work programme topics including the legal character of sanctions in conformity with international law; the principle and criteria for the timeframe of sanctions and their impact; as well as jurisdictional aspect of international organized crime..

The speaker for Finland, on behalf of the Nordic countries, described the proposal by a working group of the Commission for a study on the fragmentation of international law as one of the most interesting, since it encompassed the profound transformation of international relations in the 1990s. Special regimes and institutions had emerged to regulate and manage the law applicable in such fields as human rights, the environment and economic and social cooperation and in ways that were not always in harmony with principles of traditional, sovereignty-based public international law.

On the section of the report dealing with prevention of transboundary harm from hazardous activities, the representative of New Zealand said the two aspects of prevention and liability were a continuum encompassing all steps in a chain of obligations, beginning with the duty to assess the risk of significant transboundary harm and to take preventive action, and ending with implementation of an obligation to ensure compensation or other relief for harm which actually occurs. Rules on the two should take the form of a composite convention.

Also speaking in the debate this afternoon were the representatives of Austria, France, Netherlands and Hungary.

The Committee will meet again at 10 a.m. tomorrow, Thursday, 2 November, to continue its discussion on the report of the International Law Commission.

Sixth Committee - 2 - Press Release GA/L/3162 22nd Meeting (PM) 1 November 2000

Committee Work Programme

The Sixth Committee met this afternoon to continue its discussion of Reservations to Treaties and International Liability, on which the International Law Commission is elaborating a draft of guidelines and a framework convention, respectively. (For details, see this morning’s Press Release, GA/L/3161).

Statements

ALEXANDER MARSCHIK (Austria) said the urgent question of the legal effects of reservations must be addressed as soon as possible. Guideline 1.1.8 on reservations made under exclusionary clauses could pose difficulties in relation to certain treaties, for example, the Rome Statute, which allowed for a declaration accepting the Court’s jurisdiction for a period of seven years with respect to certain crimes.

The problem of reciprocal effect must be dealt with sooner or later, since reservations to so-called normative treaties or, in particular, human rights treaties, had their particularities in that regard. In the context of such a discussion, the problem of the legal effect of declarations addressed by guideline 1.1.8 could also be taken up.

Concerning guideline 1.4.6, he had doubts as to whether a negative definition, that is, an enumeration of acts which did not fall within the ambit of the definition itself, was helpful. Positive definitions could suffer from additional negative descriptions. Austria was not convinced of the need to deal with alternatives to reservations in the context of reservations. The issues deserved to be dealt with separately.

The guidelines that had not yet been discussed by the Commission touched upon some of the most sensitive areas of reservations and would need a thorough and elaborate study. As to late reservations, he said the proposal for a procedure, whereby tacit agreement would suffice to make an originally inadmissible reservation an admissible one, would be acceptable only if it was ensured that all State parties were well aware of the existence of the late reservation. Only then could silence be considered norm-creating.

MARTTI KOSKENNIEMI (Finland), speaking on behalf of the Nordic countries, first addressed the issue of topics for the Commission’s long-term programme of work. The topic of responsibility of international organizations was of great practical interest and was a field in which codification would clearly constitute a helpful intervention in a matter of practical importance. He noted that international organizations had become increasingly autonomous actors in the international scene. By contrast, the topic of the effect of armed conflict on treaties seemed to relate to an era when war was a more or less regular part of international relations, a legal status on par with its opposite -— peace.

He also questioned usefulness of the topic of shared natural resources. As an alternative, he added, a deliberation of the precautionary principle would perhaps be of more general interest, especially as it had already been applied in several conventions and in many national laws. While the Commission’s own criteria for choice of new topics called for novelty, there was not one subject having to do with human rights proper, or with economic or development law. The patterns of international trade or the principles for the management of public debt were not naturally beyond regulation by public international law rules or principles. Much of development law was treaty law, based on multilateral and bilateral treaties of assistance and cooperation. Even if a unified codification was not advisable, there might be room for the identification and development of new principles, such as, for example, non-reciprocity or “best practices”, that regularly appeared in treaties.

Describing “risks ensuing from the fragmentation of international law” as one of the Commission’s most interesting proposed topics, he said it encompassed new developments and the profound transformation of international relations in the 1990s. Special regimes and institutions had emerged to regulate and manage the law applicable in certain fields. Often that regulation had taken place within the confines of the general system, at other times that had not been the case. The principles of human rights laws, environmental law, economic law or, indeed, European Community law, were not always in harmony with principles of traditional, sovereignty-based public international law. It was far from clear whether fragmentation was a uniquely negative phenomenon. Fragmentation was also a diversification that brought new subject matters, new groups of people, as well as new needs and new claims to the compass of the law.

ARNAUD BARTHELEMY (France), speaking on reservations to treaties, said he wishes to stress, as he had done in the past, that the terms used in French to describe the guidelines were not satisfactory, since they were not binding.

He said he was pleased with the Special Rapporteur’s work. Questions raised about the distinction between reservations and interpretative declarations were important. Conditional interpretative declarations embodied in guideline 1.2.1. adopted by the Commission should be manifestly expressed. He said the title of the provisions in 1.5.1. should be changed. The term bilateralization should be avoided. Provisions 2.2.1. in the guideline relating to questions of reservations formulated when a treaty was being signed or negotiated, were not in keeping with French practice, he said.

He said his delegation was willing to examine the elaboration of those provisions in a constructive spirit. The work on restrictive interpretations must correspond with the objectives of the exercise. Work being done on definitions was particularly important, as were other aspects, such as the scope of the regime of reservations.

It was important, he stressed, that the new guidelines being elaborated complemented the provisions of article 23 of the 1969 Vienna Convention on the Law of Treaties, without altering the spirit of that instrument.

HENDRIKUS VERWEIJ (Netherlands) said unilateral acts had a more limited scope than treaty law, yet codification or progressive development of that concept and its legal consequences might promote stability of international relations. In view of the large variety of types of unilateral acts, it was difficult to identify common legal effects and provide specific answers to the questions posed without differentiating between the various types of unilateral acts, such as promise, notification, recognition, waiver and protest. A step- by-step approach to the topic, dealing separately with each category of act, might be more appropriate. As a result of the unduly restrictive approach, which had been adopted to the scope of the topic, the Netherlands had had to abandon its wish to see certain acts included, such as establishment of a 12 mile territorial sea, as well as the establishment of the exclusive economic zone.

He was concerned at the exclusion of unilateral acts of international organizations from the envisaged legal regime, as those acts were gaining in significance. Even though unilateral acts of international organizations presented different aspects and problems, there was no reason to delay taking stock of them. As host to numerous international organizations, the Netherlands attached importance to the topic being placed on the agenda. In the context of the notion of “autonomy”, he agreed that a unilateral act could not produce legal effects unless some form of authorization to do so existed under general international law.

While the Vienna Convention on the Law of Treaties was a useful frame of reference for an analysis of the rules governing unilateral acts, the solutions in the Convention should not be reproduced word for word; the Convention should be used sensibly and very carefully as a source of inspiration, he said.

GYORGY SZENASI (Hungary) said his delegation agreed with the Special Rapporteur that the Guide to Practice on Reservations to Treaties would merely systematize the prevailing State practice. It also shared the view of the Special Rapporteur that reservations and their alternatives were useful, in that they might be conducive to States becoming party to multilateral treaties, thereby contributing to the general acceptance of international legal norms.

He said Hungary noted with satisfaction that the Commission had adopted five guidelines on reservations with commentaries. It agreed with the approach taken that, in each of the guidelines, international organizations -– in addition to States -– were also included as major actors in the field of making reservations or statements to treaties. That approach rightly reflected the increasing role and importance played by international organizations in law- making. It had no difficulty in accepting the contents and wordings of the guidelines

The very definition of reservations made under exclusionary clauses contained an important reference to a clause in a treaty which should authorize the parties “to exclude or to modify the legal effect of certain provisions”. As far as the opt-in or opt-out clauses were concerned, he said, the second and third guidelines themselves underlined that that kind of restriction, condition or choice did not fall within the scope of the guide being elaborated. Hungary agreed with guideline 2.2.2 concerning “Reservations formulated when negotiating, adopting or authenticating the text of the treaty and formal confirmation”.

The guidelines on late reservations deserved full attention in view of the practice of several depositaries in that field, particularly, the one followed by the United Nations Secretary-General.

VICTORIA HALLUM (New Zealand) said it was important in an increasingly interdependent world that there be recognized rules and principles governing the conduct of activities, which were not per se unlawful but which, by their nature, might have injurious consequences. State responsibility, because of its all-or-nothing consequences, was not a suitable vehicle for trying to reconcile the freedom of States to permit the conduct of useful activities with their duty not to harm others.

She said the key principles underpinning the topic were: human activities involving intervention in the natural order would continue to be pushed to the limits of scientific and technological knowledge; while such acts might often produce important benefits, they also might involve harmful, and sometimes unforeseen, consequences; the laws of nature made it impossible to confine any harmful consequences within national boundaries; and, recognized principles of international law, as well as State practice, provided guidance regarding the framework which should govern such acts.

She welcomed the decision to resume consideration of the liability aspects of the topic, as it would help bring the two aspects of prevention and liability together on a single track. New Zealand continued to see the two aspects as a continuum encompassing all steps in a chain of obligations, beginning with the duty to assess the risk of significant transboundary harm and to take preventive action and ending with implementation of an obligation to ensure compensation or other relief for harm which actually occurs. Rules on those issues should take the form of a composite convention with the objectives of encouraging States to agree, bilaterally and multilaterally, on detailed regimes applying its principles to the conduct of particular activities; and, in the absence of such a regime, to provide States with a principled basis for avoiding or settling disputes about the risk or occurrence of significant transboundary harm.

SADDIQ El-SHIBANI (Libya) said the International Law Commission should take account of commentaries by governments based on State practice. The Commission should work on the definition of crimes committed by States. There was also need for a definition of coercive acts of States, as well as countermeasures. Those definitions would be extremely important because of the need for balance between interests of States and international law.

On countermeasures, he said the concept was of primary importance to international law. It was one of the exceptional measures States could use. Recourse to countermeasures should be eliminated, as there were alternatives States could employ. There was also the need to eliminate all acts which could lead to the use or threat of use of force. He stressed the importance of the provision of article 49 of the draft text, which dealt with the invocation of responsibility by States other than the injured State. His delegation believed that only an injured State could take countermeasures after all peaceful means had been utilized in accordance with international law. It did not agree with the idea of collective application of countermeasures. It also did not agree to

the arrogation of the use of countermeasures to any group of countries not sanctioned under international law. He noted that the concept had been applied a political weapon for repressive purposes.

On diplomatic protection, he said he shared the belief of the Commission that the use of force to protect nationals abroad constituted violation of international law. A number of States had interfered in the internal affairs of others on the pretext of protecting their nationals. That was a violation of State sovereignty.

On unilateral acts of States, he said it was an important topic which should remain a focus for the Commission. He urged States to supply information to the Commission on their practices. He pointed to a new category for consideration by the Commission concerning unilateral acts with international legal effects. There were many examples of such acts which constituted political dicta and went beyond borders. Legislative acts were being employed, which restricted free trade and movement of capital, he said.

The Commission should include that category of unilateral acts on its agenda and should do so in detail at its future sessions. The issue was of major concern to a large number of delegations, he said. He referred in that connection, to a resolution recently adopted by the General Assembly under item 31 entitled, “Elimination of coercive unilateral economic measures which go beyond national boundaries and constitute a means of economic and political pressure.” He said the Commission should add additional topics to the five already selected: namely, the legal character of sanctions in conformity with international law; and the principle and criteria for timeframe of sanctions and their impact; as well as jurisdictional aspect of international organized crime.

* *** *