LEGAL COMMITTEE CHAIRMAN COMMENDS DEBATE ON TOPICS FROM REPORT OF INTERNATIONAL LAW COMMISSION

Press Release
GA/L/3164

LEGAL COMMITTEE CHAIRMAN COMMENDS DEBATE ON TOPICS FROM REPORT OF INTERNATIONAL LAW COMMISSION

Frank, Open Exchange of Views Called ‘Extremely Useful’; Head of Commission Says Comments Will Help Its Future Deliberations

The Sixth Committee (Legal) this morning concluded its consideration of the report of the International Law Commission. For the last three days, the Committee discussed reservations to treaties and transboundary damage from hazardous activities.

Also this morning, the Committee heard the introduction of a draft resolution on the work of the United Nations Commission on International Trade Law.

On the issue of reservations to treaties, the International Law Commission report indicated that the Commission had 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 clarifications and examples.

The Commission also considered a set of draft articles on prevention of transboundary damage from hazardous activities presented by its Special Rapporteur. The articles constituted progressive development on the topic and sought to evolve procedures that would enable States to act on the issue of prevention, according to the Commission.

Mauro Politi, Italy, Chairman of the Sixth Committee, in a concluding statement, said the Committee had an extremely useful, frank and open exchange of views on the important topics being considered by the Law Commission. He was sure the comments of delegations would constitute a great help for the Commission at its next session.

Chusei Yamada, Japan, Chairman of the International Law Commission, said the Commission attached great importance to comments from Sixth Committee members. He reiterated that the Commission intended to complete the second reading of the draft articles on State responsibility at its next session in 2001. He said the comments were particularly helpful, both to the Special

Sixth Committee - 1a - Press Release GA/L/3164 24th Meeting (AM) 3 November 2000

Rapporteurs who were present, and to members of the Commission. Written comments from governments would provide additional help.

Statements were made in the debate this morning by the representatives of Israel, Netherlands, Bahrain, Russian Federation, Brazil, Portugal, Venezuela, Turkey, Greece, Burkina Faso, Cameroon and Cuba. The Observer for Switzerland also spoke.

In discussion of topics identified for future study by the Commission, many speakers supported priority for the topics on responsibility of international organizations and on fragmentation of international law. Other suggested topics covered environmental law, the individual in international law, the effects of armed conflict on treaties, and norms and principles related to international economic relations.

It was noted during the days of discussion that the International Law Commission’s own criteria for choice of new topics called for novelty. One speaker noted the apparent absence of any subject having to do with human rights proper, or with economic or development law. It was said the patterns of international trade or the principle for the management of public debt were not naturally beyond regulation by public international law rules or principles. Even if a unified codification were not advisable, there was room for the identification and development of a new principle, the Committee was told.

The 34-member Commission was established by the General Assembly in 1947 to codify customary international law and to promote the codification and progressive development of international law. Its experts represent the world’s principal legal systems.

The Commission also dealt, during its last session, with such issues as State responsibility, diplomatic protection and unilateral acts of States.

The Sixth Committee will meet again at a date to be announced in The Journal.

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Committee Work Programme

The Sixth Committee (Legal) met this morning to conclude its consideration of the report of the International Law Commission, covering Reservations to Treaties and International Liability for Prevention of Transboundary damage from hazardous activities.

Also this morning, the Committee was to hear the introduction of a draft resolution on the report of the United Nations Commission on International Trade Law (document A/C.6/55/L.5).

By the text of the draft on the Report of the International Trade Law Commission (A/C.6/55/L.5), the Assembly would emphasize the need for higher priority to be given to the Commission’s work, in view of the increasing value of the modernization of international trade law for global economic development. The draft commends the Commission for the work, which culminated in the adoption of the United Nations Commission on International Trade Law (UNCITRAL) Legislative Guide on Privately Financed Infrastructure Projects, as well as the important progress on receivables financing.

The Assembly would appeal to governments to reply to the questionnaire on the legal regime governing the recognition and enforcement of foreign arbitral awards. It would invite States to nominate persons to work with the private foundation established to encourage assistance to the Commission from the private sector.

United Nations bodies would be called upon to bear in mind the mandate of the Commission and the need to avoid duplication of effort. It would recommend that the Commission continue to maintain close cooperation with other international organizations, including regional organizations, active in the field of international trade law.

In affirming the importance, particularly for developing countries, of the Commission’s training and technical assistance programmes, the Assembly would appeal to the United Nations Development Programme (UNDP) and other bodies responsible for development assistance to support those programmes and to coordinate their activities with the Commission. An appeal would also be made to governments and relevant United Nations bodies to make voluntary contributions to the trust fund for travel assistance to developing countries to ensure full participation by all Member States in the sessions of the Commission. The Assembly would decide to continue its consideration of granting travel assistance to the least developed countries that are members of the Commission.

The Assembly would also express appreciation to the Commission for the seminars it organized and to the Governments whose contributions enabled the holding of those seminars. The Assembly would appeal for voluntary contributions to the trust fund for financing and organizing seminars and symposia.

The draft stresses the importance of bringing into effect the conventions emanating from the work of the Commission, and would urge States to consider signing, ratifying or acceding to those conventions.

Finally, the Assembly would express its appreciation to Gerold Herrmann, Secretary of UNCITRAL since 1991, who will retire on 31 January 2001.

The draft is sponsored by Algeria, Angola, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Canada, Chile, China, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, Finland, France, Germany, Greece, Guatemala, Haiti, Hungary, India, Indonesia, Iran, Ireland, Israel, Italy, Japan, Lesotho, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malta, Mexico, Netherlands, New Zealand, Nigeria, Norway, Peru, Philippines, Poland, Portugal, Romania, Russian Federation, San Marino, Singapore, Slovakia, Slovenia, South Africa, Spain, Sweden, Thailand, The former Yugoslav Republic of Macedonia, Turkey, Uganda, Ukraine, United Kingdom, Uruguay and Venezuela.

Statements

TAL BECKER (Israel) said his delegation was not convinced that the purpose of the guide to practice on reservations to treaties had been adequately formulated. It was unclear, he said, whether the purpose was to assemble and codify existing practice and to provide guiding principles of interpretation to the Vienna Conventions of 1969 and 1986. It was also not clear whether the guide purported to supplement the Vienna Conventions and add norms and principles not specifically provided for in them. He proposed that the matter be clarified by the Commission before it proceeded to work on other aspects of the topic.

He said it should be noted that in their studies and proposals, both the Special Rapporteur and the Commission had relied, inter alia, on the Vienna Convention on the Law of Treaties between States and International Organizations of 1986, which was not yet in force. In that context, his delegation would support those who questioned whether, since the Vienna Convention was not yet in force, and as long as it was not yet in force, the guide to practice should refer to international organizations.

On the draft guidelines, he said the language used in 1.7.1 and 1.7.2 of the guide to practice appeared to grant the parties an unduly broad discretion to modify, exclude, specify or clarify the provisions of a treaty, without referring to any limitations in that regard. It should be amended to ensure that their terms were consistent with the provisions of the Vienna Convention on the Law of Treaties, and that they were not interpreted in a way that would allow the spirit and main objectives of a treaty to be undermined

On international liability, his delegation felt it would be more appropriate to draw up guidelines which could form the framework for more detailed regional arrangements between parties directly concerned. That would allow for a more flexible framework, which would be adapted to existing regional mechanisms and realities. On the Commission’s long-term programme of work, the Israeli representative cautioned against an overly ambitious agenda, which could prevent the Commission from reaching a workable conclusion on the various topics selected for study in a timely fashion. It recommended that only a restricted number of topics be given priority, such as the topic entitled, “Risks ensuing from fragmentation of international law”. In addition, it would welcome a study of the subject of “Responsibility of international organizations”, which, he said, flowed logically from the Commission’s work on State responsibility. The Commission should give special attention to the legal consequences of ultra vires acts committed by international organizations.

ELDA PAPAPOULOU (Netherlands) regretted that parts of the report on reservations to treaties repeated interpretations already agreed upon, and as such did not develop the work of the Commission on the subject. She said rules that at face value appeared to be of a mere procedural nature, might have major consequences at the level of substantive law. Interpretative declarations could only be dealt with meaningfully once a general discussion of reservations had taken place.

It was widely accepted, she went on, that so-called conditional interpretative declarations had a nature similar to proper reservations. Treating those declarations as a separate category would not be helpful and would create confusion rather than transparency. Also, it would serve to condone a practice that had largely developed as a way to circumvent the rules of the law of treaties. A guideline indicating when and under what kind of circumstances an interpretative declaration must be understood to be a reservation, to which the International Law Commission guidelines would apply, would be quite sufficient to deal with the issue.

She said it would not be a good idea to seem to be advocating the admissibility of reservations, after consent to be bound by the treaty had been expressed, if the treaty provided for that. In the discussion on late reservations, there was unfortunately no distinction between a completely novel reservation and a reformulation, in the sense of partial withdrawal of the reservation. The legal implications of the two were quite different.

She suggested a guideline dealing with the acceptability of “late reservations having the character of a partial withdrawal”, while at the same time making it clear that completely novel reservations could not be made after expressing consent to be bound.

HUSAIN M. Al BAHARNA (Bahrain), speaking on international liability, referred to the major issues involved in the draft articles concerning prevention. The focus was on such issues as activities not prohibited by international law, significant harm, its definite meaning and nature, as well as the concept of due diligence, among others. His delegation disagreed with the suggestion that the phrase “not prohibited by international law” be deleted from the draft text. It was basically essential for the legal distinction between the topic of international liability and State responsibility.

With regard to “significant harm”, he said there was no longer room for argument about the expression. It should be assumed that term had been accepted as the most appropriate that could be applied to the topic. It was also the term employed in the Convention on the Law of the Non-navigational uses of International Watercourses.

He stressed the importance of the international liability aspect of the topic, which should be dealt with as soon as the draft articles on prevention were approved, following their finalization by the Commission. He said the draft articles should be adopted as a framework convention. The Commission had a duty to deal with liability as it was an important main component of the topic, together with the issue of prevention of transboundary harm. There was sufficient information on the topic of international liability, both in State practice and international agreements. He also said a framework convention on prevention required specific provisions on the settlement of disputes.

ILYA ROGACHEV (Russian Federation), speaking on international liability, said the draft articles on the topic were well-balanced. He hoped the Commission would be able to complete them during the second reading for adoption as a convention by the General Assembly. The Commission could take note of the existing number of instruments on the subject during the finalization of the text.

On the Commission’s future long-term programme, he noted that the Commission’s work was of great interest in the academic and legal community of his country. The Commission was right in putting at the centre of its long-term work the study of the responsibility of international organizations. The Commission should look at the legal aspects of those organizations which were becoming very powerful in the era of globalization. He said study of the question of shared natural resources of States could be of practical value. A study of expulsion of aliens was timely, as was the proposed topic, related to risks ensuing from fragmentation of international law.

MARCEL BIATO (Brazil) said the exceptional nature of late reservations must be stressed, so he therefore supported the proposal that they be accepted only if there was unanimous and prior consent by the other contracting parties to a treaty. He commended the extension of the time limit from three to 12 months for the expression of objections.

On the issue of transboundary harm, he said he supported the underscoring of the question of the relationship between a balanced and fair regard for the interests of States, and the need for effective implementation of the duty of due diligence. The preamble proposed a balanced trade-off between the imperatives of ensuring economic growth and the issues arising from hazardous activities, especially those with potential environmental impact. The due diligence principle, he added, must not be de-linked from issues of development, specifically the need to provide capacity-building and technology transfer.

The Commission’s work on the topic would not be complete without working on the issue of liability. He added that he favoured retaining the phrase “activities not prohibited under international law”. As to new themes for the Commission, he supported the topics of fragmentation of international law, responsibility of international organizations and the individual in international law.

TIAGO PITTA E CUNHA (Portugal), speaking first on diplomatic protection, said it should not be perceived as an area of international relations on the verge of extinction. New avenues of redress open to individuals might still be complemented by State action on the exercise of diplomatic protection. He fully agreed that international protection of human rights was an issue rather distinct from diplomatic protection. He said he agreed that the question of the use of force was not a part of the topic and lay outside the mandate of the Commission. While agreeing with the basic assertion of diplomatic protection as a prerogative of the State, he said there was a growing trend in domestic law to limit the discretionary element of such prerogative. He therefore believed it was not advisable to retain the phrase in article 3 that the right was of a discretionary nature.

The topic under consideration, he said, was about diplomatic protection, not acquisition of nationality. Therefore one should not attempt to define how a State could grant nationality to individuals. The provisions in article 8 were a case of development of international law warranted by contemporary international law, which could not be indifferent to the plight of refugees and Stateless persons.

Turning to reservations to treaties, he said the permissibility of reservations and the legal effects of objections were two important and crucial questions which had a bearing on the more general issue of the legality of reservations. The importance of the issue was enhanced in the case of human rights treaties, keeping in mind the number of reservations currently coming to light and their effects on the rights and freedoms of individuals.

On transboundary harm, he said that now that the work on prevention was near conclusion, it was time to deal with the question of liability. A breach of a due diligence duty on prevention demanded equitable and adequate reaction, including the obligation to ensure compensation. The Commission should address what kind of liability should be established when actual harm occurred, despite implementation of preventive measures.

He said Portugal preferred a cautious approach to the question of the phrase “acts not prohibited by international law”. His Government also recognized that the principle of prevention of environmental harm applied not only to areas of national jurisdiction but also to the so-called global commons. He agreed with those who supported a further revision of the draft articles to incorporate new developments of international law, with a special emphasis on the precautionary principle.

MARTHA DI FELICE (Venezuela), speaking on transboundary harm, said that once the work on prevention had been completed, the Commission should begin to examine the liability aspect of the topic, as had been agreed upon by the Commission itself. The draft text, including the preamble, was balanced and comprehensive and was generally acceptable to Venezuela. The Commission’s work contributed to the progressive development of international law and its codification on the subject; despite the difficulties, it represented an extremely important step forward in the area.

She said the text elaborated standard characteristics of obligations. The group of articles on prevention would facilitate the creation of procedures that would allow States to act in concert. The Commission had adequately considered the opinions and positions of governments in the elaboration of the text. Article 4 on the obligation to cooperate was essential. It recognized the possibility of requesting assistance from international organizations. She said she also fully supported the focus of the article on the solution of disputes over the application or interpretation of the articles. It allowed for a choice of mechanism to be decided upon by mutual consent and, where there was none, for the creation of an independent commission whose conclusions would be considered recommendations.

TEOMAN UYKUR (Turkey) said his country attached great importance to the rules of international law regulating the prevention of transboundary damage from hazardous activities. Rules pertaining to prevention should be based on mutual understanding and respect for each State’s rights, as well as for sovereign rights of States. Viable and generally acceptable solutions could be codified by following those principles that had so far determined the structure of the customary rules in that field.

Turkey had submitted written comments on the Commission’s draft rules on international liability. It underlined the risks of following the path of some previous international conventions that had not gained the support of the international community as a whole, and which could not be deemed to reflect the rules of customary international law. Any mechanism that envisioned a veto right on planned activities by the potentially affected State was unacceptable.

He said the establishment of compulsory rules for the settlement of disputes should be avoided. Provisions on the subject should be flexible enough to allow States concerned to determine the most efficient way of resolving any outstanding issues among them, in compliance with the nature of such issues. The principle of free choice of means, as laid down in article 33 of the United Nations Charter, should be a guide.

On the topic of unilateral acts of States, he said more substantive progress could be made from materials received from governments relating to their practice.

MARIA TELALIAN (Greece), speaking first on reservations to treaties, said she supported the inclusion of draft guideline 1.1.8 concerning the procedure for negotiated reservations, which had been used in many treaties, including human rights treaties. In reference to Article 24 of the Rome Statute for the International Criminal Court, which allowed a State to declare that it did not accept the jurisdiction of the Court with respect to certain crimes, she said her government would appreciate an answer from the Special Rapporteur, as to whether such a declaration came under that particular guideline and was, therefore, equated to a reservation.

Draft guideline 1.7.1 on the issue of alternatives to reservations was an elaborate one, and of great practical value, he said. Unilateral statements, which fell under the categories of guidelines 1.4.6, 1.4.7 and 1.4.8, were outside the scope of the guide to practice, since they did not have the legal effects of reservations. As to late reservations, her delegation wished to study the matter further before taking a position. The comments made by other delegations and the very explicit commentary of the Special Rapporteur were a good basis for a study.

She said there was an urgent need to develop new international rules concerning an international liability scheme to regulate transboundary harm, which could also contain the legal duty of States to prevent serious transnational environmental harm. The two aspects of the international liability scheme, namely, prevention and reparation, were interrelated and formed the two aspects of a compound obligation. She supported the view that rules on international liability should be of the nature of primary rules of international law and not just the consequences of an obligation. Since the second reading of the draft articles on prevention had progressed, she strongly urged the Commission to start consideration of the liability aspect at its next session.

ALAIN EDOUARD TRAORE (Burkina Faso), speaking on State responsibility, congratulated the Commission for its work on the topic and invited it to persevere until its completion. He welcomed the provisions on forms of reparation for a wrongful act of States. He said the draft instrument could not exclude or preclude wrongfulness as established in customary international law, and suggested a rewording of the text.

He said his delegation had a number of concerns with the articles on diplomatic protection. Many of its nationals lived abroad. His country was one of several in Africa where there had been too many interventions in its internal affairs. His delegation could not accept provisions that would limit a State’s right to protect its nationals abroad. Diplomatic protection should be an exclusive right of a State. The wording of article 6 on diplomatic protection should be changed.

On unilateral acts of States, he expressed satisfaction with work being undertaken by the Commission on that topic. He also welcomed work done on reservations to treaties, which created awareness about international legal instruments. His delegation would like to see work on international liability completed.

MARTIN BELINGA EBOUTOU (Cameroon), speaking on State responsibility, said work on the draft articles on the topic constituted a significant achievement for the Commission. The topic was one of the most delicate subjects in international law.

He said several problems relating to the articles on countermeasures had not been satisfactorily resolved. One was the need to distinguish bilateral from multilateral countermeasures, because the latter formed part of progressive development of international law. He thought it was dangerous for the Commission to separate the issue of countermeasures from peaceful settlement of disputes. Disputes that could not be resolved by two States would have to be referred to an impartial third party or judge for determination of the proportionality of the countermeasures.

A separate provision for dispute settlement was therefore required, he said, adding that powerful States could take illicit countermeasures. It was crucial that the unresolved problem of multilateral countermeasures and those taken by competent United Nations bodies were settled. He noted that there seemed to be a disturbing trend by some States to take measures outside the authority of the United Nations Charter, which represented the primary will of States.

On diplomatic protection, he said article 6 of the draft articles should be revised. He did not think people with dual nationalities could switch them whenever it suited them. A person with dual nationality should make a clear choice on the nationality he or she wised to keep. It should be made absolutely clear that diplomatic protection on behalf of refugees could not be exercised without the agreement of the state of origin of the individual concerned.

SORAYA ELENA ALVAREZ-NUNEZ (Cuba) said her country preferred an approach to the topic of diplomatic protection that was closer to doctrine, to State practice and to international jurisprudence. Cuba did not consider it useful to elaborate a text denominating a new concept of diplomatic protection that was intended to counterpose the rights of the individual over the rights of the State, and which had, on more than one occasion, been used by some States as a pretext for attacking other States and for compromising their territorial integrity and political independence.

Certain basic criteria needed to be kept in mind, he said, in elaborating any future rules on the subject, in the event the Commission proceeded with giving new content and scope to international protection under the title of diplomatic protection. The State had the discretionary right to provide protection or not over natural or legal persons. The rejection of the use of force, as enshrined in Article 2 of the Charter, was categorical. It was, therefore, unacceptable and worrisome that the Commission might formulate exceptions to a basic principle of international law. Relevance of the effective link between a national and his/her State was recognized under international law and should not be ignored. Nor should it be reinterpreted.

Turning to unilateral acts of States, she said intention and the legal effects of unilateral acts, as well as their compatibility with international law, should be the subject of an in-depth study in any draft on the topic. Work on the topic should also examine those unilateral acts of a State stemming from the passing of domestic legislation that had extraterritorial effects in other States, and which affected international relations and commercial and financial relations between third States and their nationals.

She said reservations to human rights treaties had no special nature. Only parties to a treaty, in accordance with the Law of Treaties, could decide the regime applicable to all reservations. On transboundary harm, Cuba believed it was necessary to codify norms that guaranteed that States assumed responsibility for the consequences of acts from hazardous activities not

prohibited by international law. She added that missing from the list of proposals on the Commission’s long-term programme of work were such topics as the right to development, norms and principles for international economic relations, and the right to peace.

VALENTIN ZELLWEGER, the Observer for Switzerland, speaking on transboundary harm, said separating the issues of prevention and liability had made it possible to achieve progress on the prevention aspect. The current draft articles represented an excellent basis for the discussion of prevention of transboundary harm.

He referred to article 15 on non-discrimination of foreigners to internal proceedings. In the absence of a convention between the relevant States which would stipulate otherwise, he said, States should grant access to their judicial and administrative procedures to all persons exposed to a risk from transboundary damage, without regard to nationality, residence or without prejudice to where the damage occurred. That principle was of primary importance in the context of prevention of damage.

In today’s world of industrialization and the production of increasingly dangerous toxic products, there was less and less justification for the fact that persons, legal or natural, that might potentially be affected by transboundary harm, did not have the ability to exercise their rights because they lived on the other side of a border, or because they did not possess the nationality of the State of origin of the damage. Switzerland, therefore, welcomed the inclusion of the article.

He said his government had favoured proceeding by stages on the topic of transboundary harm, and dividing the two aspects of prevention and liability to facilitate progress on the first aspect. However, as the Commission was now approaching a conclusion of its work on prevention, he reiterated his country’s position that prevention was only one part of the topic. If work began as soon as possible on means for remedying damages, it would allow the topic to be dealt with in an integrated way.

The representative of Austria introduced the draft resolution on the United Nations International Trade Law Commission. He announced that Rwanda had joined the list of co-sponsors.

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