PREVENTION OF DAMAGE FROM HAZARDOUS CROSS-BORDER ACTIVITY IS LINKED TO DEVELOPMENT ISSUES, LEGAL COMMITTEE TOLD

Press Release
GA/L/3163

PREVENTION OF DAMAGE FROM HAZARDOUS CROSS-BORDER ACTIVITY IS LINKED TO DEVELOPMENT ISSUES, LEGAL COMMITTEE TOLD

Discussion Continues on International Law Commission Report

The Sixth Committee (Legal) this morning continued its consideration of efforts of the International Law Commission to elaborate legal instruments on reservations to treaties and international liability for the prevention of transboundary damage from hazardous activities.

The representative of India said the regime of prevention of significant risk of transboundary harm could not be isolated from issues of development. Necessary funding and transfer of resources, including enhanced access to suitable technology at fair and reasonable prices to less developed countries, was essential for the success of any building of standards in that regard. He welcomed reference to the right to development in the preamble of the draft text on liability.

The representative of Hungary strongly supported the introduction of new articles on the establishment of contingency plans for emergencies and on the duty of notification of an emergency. Hungary, he said, had launched an initiative to strengthen regional cooperation in environmental protection in Central and Eastern Europe. It was based on the recognition of the existence of a number of different factors and conditions that made the region particularly vulnerable and also prone to transboundary harm.

The representative of Japan said he strongly supported the International Commission’s focus on the question of prevention and its decision to defer consideration of the question of international liability. On the Commission’s long-term programme of work, he said it should consider environmental issues, with the scope limited to international environmental law and with the objective of compiling substantive provisions in multilateral environmental law.

A call for the Commission to give priority to the question of responsibility of international organizations and effects of armed conflict on treaties in its future work programme came from the representative of Italy. He said his Government considered the effect of armed conflict on treaties an ideal subject for codification and progressive development of international law.

Sixth Committee - 1a - Press Release GA/L/3163 23rd Meeting (AM) 2 November 2000

Also making statements this morning were the representatives of Colombia (on behalf of the Rio Group of countries), Mexico, Bahrain, Netherlands, Poland, Russian Federation and Romania.

The Sixth Committee will meet again at 10 a.m. tomorrow, Friday 3 November, to continue its discussion of the work of the International Law Commission in the area of reservations to Treaties and international liability, as well as the Commission’s future work programme.

Sixth Committee - 3 - Press Release GA/L/3163 23rd Meeting (AM) 2 November 2000

Committee Work Programme

The Sixth Committee (Legal) met this morning to continue its discussion of Reservations to Treaties and International Liability (Prevention of Transboundary Damage from Hazardous Activities) embodied in the report of the International Law Commission. In addition, the Committee will also discuss other decisions and conclusions of the Commission from its last (fifty-second) session. (For further details, see Press Release GA/L/3154 of 23 October)

Statements

ALFONSO VALDIVIESO (Colombia), speaking on behalf of the Rio Group, said its preference was for the adoption of the draft articles on State responsibility in the form of a convention, since that could contribute to a resolution of disputes that might stem from non-fulfilment of the international obligations of States. It was correct to include in the draft text the rule on exhaustion of internal resources before invoking the responsibility of the State. He welcomed the introduction of types of reparation as being in keeping with the established principle that reparation should seek to eliminate the consequences of illicit acts as far as possible. While he was aware of the difficulties in the endeavour, he still felt the guidelines should include a provision on how to calculate the amount of indemnity. The non-material aspects of damage could be extremely relevant.

As to countermeasures, he said the Rio Group believed they should be proportional and kept to the minimum measures necessary to induce compliance. He reiterated the Group’s firm support for the principle of peaceful settlement of disputes.

Turning to diplomatic protection, he said it was the right of a State to exercise at its discretion. The Rio Group rejected the use of force as a means of implementing diplomatic protection. The protection of nationals abroad could not bring about armed conflict or occupation.

Concerning unilateral acts, he described their use as a continuous and growing practice. As they could produce legal effects in the international arena, it was necessary to elaborate general legal principles and customary norms to regulate those acts. In principle, it appeared to be possible to establish common rules with respect to the formulation of an act, such as in a definition and in who had the authority to formulate an act on behalf of the State, as well as the validity and nullity of those acts.

He said the issue of reservations to treaties was linked to an essential point of international law, namely, treaty law. He supported the Commission’s approach to try to cover gaps and clear up ambiguities without affecting the Vienna Convention aspects of the law.

As to transboundary harm, he said that in light of the integral link between prevention and liability, the Commission should continue to concentrate on the identification and definition of rules on liability.

As to the Commission’s long-term programme of work, he suggested a study of the responsibility of international organizations, the risk of fragmentation of international law and the status of the individual in international law. He expressed concern over the growing trend to favour the development of “soft law”. That should not be used as a mechanism for avoiding binding texts. It was a trend unfavourable to the progressive development of international law.

BERNARDO SEPULVEDA (Mexico), speaking first on transboundary harm, said the work of the International Law Commission was comprehensive and balanced. However, some provisions could be explained and reinforced further, such as the scope of application and a definition of significant damage. There should also be greater provisions within the context of the precautionary principle. He underscored the importance of such articles as 6, on authorization of activities under the territorial or jurisdictional control of a State, and article 15 that allowed persons who might be affected to have access to the legal procedures of a State without discrimination on the basis of nationality, residence or where the damage took place.

Recalling the decision first to examine the aspect of prevention before moving on to a study of liability, he said the links between the two made it necessary for draft articles on prevention to contain a special regime for liability for damages, whether or not there was a violation of an obligation of prevention. As the Commission was now nearing the completion of work on prevention, the time had come to begin an analysis of liability.

He welcomed the draft guidelines on reservations to treaties. The Commission should not forget that the aim was to assist States in clearing up ambiguities and gaps in the Vienna Convention without modifying that regime. The issue of late reservations deserved further consideration. One of the guidelines established an exception, which could open the door to the admissibility of late reservations. He welcomed the decision to examine alternatives to reservations.

As to the Commission’s long-term programme of work, he said he was not convinced of the usefulness of all the subjects, and was particularly concerned that some subjects, such as the matter of expulsion of aliens, were being analyzed in isolation and not in their overall context. New items should not affect the study of subjects that were already on the agenda and which should be given priority. The holding of some Commission meetings in New York might help to strengthen the links between the Sixth Committee and the Commission.

HUSAIN M. AL BAHARNA (Bahrain), speaking on reservations to Treaties, dealt with the five guidelines adopted by the Commission at its last session. He said a unilateral statement, according to the guideline on reservations made under exclusionary clauses, constituted a reservation. A unilateral statement of a State under the optional clause was outside the scope of the Commission’s guide to practice. Moreover, he said, any restriction or condition contained in such a statement did not constitute a reservation within the meaning of the guide to practice. He endorsed the Commission’s view that it might be necessary to insert a provision to distinguish between reservations and statements made under an optional, or even exclusionary clause. He said his delegation agreed that alternatives to reservations and interpretative declarations, which derived their source from the text itself, “differed profoundly from reservations”, as they constituted not unilateral statements, but clauses in the treaty itself. He noted the Commission’s observation that the alternative assertions deserved to be mentioned in a chapter of the “guide to practice” devoted to the definition of reservations.

HARRY VERWEIJ (Netherlands) said his country had followed with great interest and some concern developments on the topic of transboundary harm. He understood that the issue of liability had been deferred, pending the adoption of the draft articles, but stressed that he considered the adoption of draft articles to be an essential element of work on the topic.

He expressed satisfaction that due account had been given to the concern over the scope of the draft articles, in particular, the definition of risk of causing significant transboundary harm. The new wording made it clear that a range of activities was covered. He welcomed the redrafting, whereby no authorization could be given for an activity before the State of origin had notified States likely to be affected of a proposed activity, and such States had a reasonable time to respond to the notification. He was also pleased that the two draft articles dealing with “emergency preparedness” and “notification of an emergency” had been adopted.

The Netherlands was disappointed, though, that no further thought had been given to the elaboration of the provisions on environmental impact assessment. Also, the treatment of dispute settlement had remained meagre. He urged the Commission to further improve the draft articles in light of the comments and observations submitted by governments.

ANANT G. GEETE (India) said it was an important clarification that unilateral statements made under an exclusionary clause were to be treated as reservations, inasmuch as an exclusionary clause was a negotiated reservation (draft guideline 1.1.8). It was equally clear, he said, that unilateral statements made by a State or by an international organization made under an optional clause were outside the scope of the guide to practice (draft guideline 1.4.6). However, he said, if a State party to an optional clause were to make a statement modifying the terms of the operation of that optional clause, then such a statement might be regarded as a reservation to the legal regime incorporated in the optional clause. To that extent, he said the interpretation of the unilateral statements affecting the operation of the optional clause in respect of the State party might be governed by the scope of the present guidelines.

The contribution of the Commission on the subject of alternatives to reservations (draft guideline 1.7.1) was impressive, he said. The broad categorization of the procedure involved in that regard, on the basis of the techniques used and the object pursued, and illustration of various procedures under each of those categories, was extremely helpful. India agreed that where supplementary agreements were concluded among States parties to an agreement, the same would have to be treated as an independent agreement and not as reservation. On the topic of international liability, he said his delegation happily noted that the Commission was now poised to complete the second reading of the topic of prevention. He said the regime of prevention of significant risk of transboundary harm arising out of hazardous activities could not be isolated from issues of development. Necessary funding and transfer of resources, including enhanced access to suitable technology at fair and reasonable prices to less developed countries, was essential for the success of any standard building and implementation in that regard.

The preamble to the set of draft articles proposed by the Special Rapporteur referred to the right to development, among other equally important principles, and was thus welcome. However, his delegation would have preferred to see one or more articles on the subject of linkage between capacity-building and effective implementation of the duty of due diligence.

While the regime of prevention essentially incorporated the duty of due diligence and engagement between States concerned in case of any significant transboundary risk, his delegation did not favour specific reference to the duty of due diligence in article 3. The present formulation referring to duty to take all appropriate measures was not only satisfactory, but also more appropriate for inclusion in article 3. He said the draft articles should be adopted as a framework convention. A specific regime of dispute settlement must be left to States concerned.

UMBERTO LEANZA (Italy) commended the efforts of the Commission on the preparation of the draft guidelines. He noted that the Special Rapporteur had referred to the practice of certain depositaries, including the United Nations Secretary-General, as an example of tacit agreements between all contracting parties with the view to acceptance of “late” reservations.

The Commission, in its guidelines, had proposed a timeframe of 12 months for submissions of objections to late reservations. That timeframe had recently been adopted by the United Nations Secretary-General instead of the previous 90 days. The extension of time seemed more suitable.

He said the draft guidelines on reservations constituted useful instrument for international practice. However, they were but part of a necessary scenario which must be completed -- together with the procedural questions in the second part of the fifth report of the Special Rapporteur -– at the next session of the Commission.

On decisions and conclusions of the Commission , he noted that it had agreed with its planning group to include the following topics in its 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 the Italian Government would like priority to be given to the first two -- responsibility of international organizations and effects of armed conflict on treaties. He said it considered effects of armed conflicts on treaties an ideal subject for codification and the progressive development of international law. Account should be taken of the new forms of international conflicts and military activities.

It was also his Government’s view that it would be desirable for work to be completed on international liability for injurious consequences arising out of acts not prohibited by international law, before the Commission took up a study on national resources. On the expulsion of aliens, he said that fell within the prerogative of States and was covered by certain restrictions of general international law in the area of human rights, protecting especially refugees, for whom there was right of asylum.

GYORGY SZENASI (Hungary), speaking on International Liability, said the proposed changes in the draft articles reflected further progress on the topic. One of the welcome elements was the proposal to delete the phrase “acts not prohibited by international law” from the title. His delegation endorsed the additions to article 6 clarifying the obligations of the State of origin concerning prior authorization. It was also convinced that the principle of retroactivity covering pre-existing hazardous activities in paragraph 2 of the article was necessary to create an all-encompassing regime. Hungary supported the more stringent procedural rules proposed in articles 9 and 10 concerning notification, information and consultation-related issues.

Furthermore, he said, the obligation of the State of origin to introduce appropriate interim measures for a reasonable time created the necessary link between the lifespan of such measures and the period of time needed to resolve the dispute at hand. He said his delegation strongly supported the introduction of new articles 16 and 17 on the establishment of contingency plans for emergencies and on the duty of notification of an emergency,

On the future form of the draft articles, he said his delegation agreed that it should be a framework convention. Hungary had launched a regional environmental initiative to strengthen regional cooperation in environmental protection in Central and Eastern Europe. The initiative was based on the recognition of the existence of a number of different factors and conditions that made the region particularly vulnerable and also prone to transboundary harm. He said a detailed set of rules on liability and on the conditions for the invocation of liability was necessary.

WLADYSLAW CZAPLINKSI (Poland) said his delegation still had some difficulties with the initial draft guidelines on reservations to treaties. It was of the opinion that the phrasing of the “object of reservations" found in guideline 1.1.1. probably extended the literal meaning of the definition of reservation under all three Vienna Conventions and under provision 1.1. of the ‘guide to practice’ itself. He also questioned what should be done with reservations which truly related to the treaty as a whole.

He said guideline 1.4.1 on statements purporting to undertake unilateral commitments, seemed to create a possibility that to make a reservation at a time that was not covered by the definition of the reservation, he said

He said Poland generally supported the reasoning and conclusions reached on the chapter dealing with formulation, modification and withdrawal of reservations, and interpretative declarations. The question of late reservations should be carefully studied.

As to unilateral acts of States, instead of formulating any specific criteria concerning particular kinds of unilateral acts, the Commission should concentrate upon a possible set of rules concerning all kinds of unilateral acts and possible interrelations between the unilateral acts of States and treaties as regulated by the Vienna Convention. The draft articles should deal exclusively with the so-called homogenous unilateral acts which were able to produce legal effects on their own.

Turning to transboundary harm, he said the limitation of the draft articles to the obligations deriving from prevention in cases of the activities which could possibly bring harm to the natural environment would constitute an unnecessary narrowing of the issue.

ILYA ROGACHEV (Russian Federation), speaking on Reservations to Treaties, expressed satisfaction about the quality of the Special Rapporteur’s work on the topic. He noted the synthesis of his previous work on the subject, as well as the incorporation of the views and comments expressed in the Sixth Committee last year on the topic.

He recalled that the Commission had adopted five draft guidelines covering reservations made under exclusionary clauses, unilateral statements made under an optional clause, unilateral statements providing for a choice between the provisions of a treaty, alternatives to reservations and alternatives to interpretative declarations. On the whole, the draft text was acceptable to his delegation. The new guidelines had several advantages, as it included accumulated experience of the practice of States.

He hoped the Commission would continue to make more progress in its work on the topic.

BOGDAN AURESCU (Romania), speaking first on diplomatic protection, said it represented a discretionary right of the State. At the same time, given the most recent developments in the field of international protection of human rights, one could consider that diplomatic protection, although clearly not being a human right, might also be viewed as a valuable procedural method to ensure protection for human rights. He supported a deletion of article 2 as the use of force could not be considered in the context of diplomatic protection and was even contradictory to the very nature of it.

The issue of an effective or dominant link in article 5 was only a question of “opposability” between two or more States of which an individual was a national. It was not appropriate to give legal possibility to any other State to invoke the "effective link" theory in order to reject the procedural endeavours of a State of nationality trying to protect its national, provided that the nationality had been legally granted. He preferred using a reference to dominant nationality instead of effective nationality.

He said that given the great diversity of unilateral acts of States, he supported the initiative to divide the draft articles into a first part establishing general provisions applicable to all acts, and a second part creating rules applicable to specific categories of acts which could not be regulated in a uniform way due to their distinctive character.

He welcomed the adoption of the five new guidelines on reservations to treaties and noted with interest the one on alternatives to reservations, to which States would attach a great importance in light of its usefulness in increasing the number of States willing to become party to a particular treaty.

SHOTARO YACHI (Japan), speaking on diplomatic protection, said article 2 should be deleted, since the issue of the use of force should not be dealt with in the context of diplomatic protection. Also, diplomatic protection was a right accorded to a State under international law, and not to an individual. A State had full discretion in its exercise. Japan did not consider it appropriate to incorporate a human rights implication into the draft on diplomatic protection. Referring to article 5, he said the article should not deal with methods of acquisition of nationality, since that was an internal matter of a State.

Concerning article 6, he said it might be too early to codify a rule to allow a State to exercise the right of diplomatic protection against a State of which the injured person was also a national. In reference to article 8, he believed that the problem of protecting refugees could be addressed more appropriately by other bodies.

Turning to unilateral acts, he said that, because of the lack of sufficient State practice, he doubted whether the situation was ripe for codification. He considered that the draft articles on reservations to treaties might be too detailed and complex for use as a guide to State practice. Conceptual distinctions among categories of acts were meaningful only if the legal effects of each category were clarified.

As to international liability for transboundary harm, he said that, for many of the areas, a specific regime of liability was already established, based on the particular character of the area concerned. He therefore strongly supported the Commission’s focus on the question of prevention and its decision to defer consideration of the question of international liability.

On the Commission’s long-term programme of work, he requested that the Commission keep environmental issues under consideration, with scope limited to international environmental law and with the objective of compiling substantive provisions in multilateral environmental law and extracting general rules.

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