Fifty-sixth General Assembly

Sixth Committee

18^th & 19^th Meetings (AM & PM)

PROPOSED GUIDELINES ON FORMULATION OF RESERVATIONS

TO TREATIES ARE REVIEWED BY LEGAL COMMITTEE

Debate Continues on Report of International Law Commission

The Sixth Committee (Legal), this afternoon began deliberations on draft guidelines on formulation of reservations to treaties and interpretative declarations prepared by the International Law Commission at its fifty-third session this year.

The text, introduced by the Chairman of the Commission, Peter Kabatsi, included a provision establishing the principle of the obligation of States and international organizations to confirm a reservation formulated when they were signing a treaty.  He said the obligation had now become part of positive international law and the Commission had reiterated that principle.

The Commission also considered the effect of State succession on the implementation of the principle, the list of cases in which a reservation must be confirmed when a treaty was being signed and the cases of the “embryo reservations” constituted by statements made before a treaty was signed.  He said the Commission would welcome comments and observations on the question of conditional interpretative declarations; the issue of late formulation of reservations and the role of the depositary, he stated.

Speaking on the topic this afternoon were the representatives of Bahrain, China Italy and Republic of Korea.

At a meeting this morning, the Sixth Committee concluded its examination of draft articles on prevention of transboundary harm from hazardous activities which was also considered by the International Law Commission at its 2001 session.  Debate on the text began last Friday, 2 November.

Speakers on the topic today were the representatives of Hungary, United Kingdom, Poland, Australia, Mexico, New Zealand, Guatemala, Russian Federation, India, Argentina, Cyprus and Romania.

The Observer for Switzerland also made a statement.

At the end of the debate, Pemmaraju Rao, Special Rapporteur on the topic, responded to comments made by delegations in the course of the debate.

The Committee will next meet at 10 a.m. tomorrow, Tuesday, 6 November, to continue its discussion of Reservations to Treaties contained in the report of the International Law Commission.

Background

The Sixth Committee (Legal) met this morning to resume its consideration of the report of the International Law Commission on its 2001 session, with special focus on International Liability for Injurious Consequences arising out of acts not prohibited by international law (Prevention of Transboundary Harm from Hazardous Activities).

The Commission, at its session, adopted the final text of the draft articles on the topic, and recommended that the General Assembly elaborate the text as a convention.

Statements

ARPAD PRANDLER (Hungary) endorsed the refinements made to the draft articles on prevention of transboundary harm.  He said he especially welcomed the reference to activities involving a risk of causing significant transboundary harm, which included a reference to "hazardous activities."  He was also pleased to note the explicit reference to the necessity of environmental impact assessments which provided for the duty to assess possible risks prior to authorization.

As to structure of the text, he questioned the placement in article 11 of the provision requiring the State of origin to introduce appropriate and feasible measures to minimize the risks and where appropriate, suspend activity, saying it should be placed rather in article 9, together with the provision for consultations on preventive measures.  He highlighted improvements to article 19 on settlement of disputes.  However, the possibility of compulsory settlement of disputes by recourse to the International Court of Justice or arbitration, in the event of a declaration on the acceptance of compulsory jurisdiction being made at the time of ratification, acceptance or approval of the convention, should have been included as well.

While Hungary did not object to a convention being elaborated based on the draft articles on prevention, he said, the development of a clear set of rules on liability was also inextricably linked to the establishment of an appropriate regime for transboundary harm.  Work should therefore be resumed by the International Law Commission on the issue of liability.  He endorsed the concept of liability as a duty to repair transboundary harm without regard to the wrongfulness of the conduct under international law.  An effective regime of liability should be based on the understanding that the affected State would be compensated for any harm arising from any hazardous activity carried out on the territory of the State of origin.  He said, an examination of whether or not bilateral agreements with neighbouring countries in the field of environmental protection or water management would need to be revised or updated would ensure that contracting States Parties assumed responsibility to compensate for all transboundary damage to the other Party.  Hungary also wished to see a widespread inclusion of the "polluter pays" principle in regional as well as global international instruments.

CHANAKA WICKREMASINGHE (United Kingdom) said the draft articles represented a valuable contribution to an important and evolving area of the law, in seeking out a framework for the prevention of transboundary harm.

The core obligation set out in article 3 was based on standards of due diligence and provided a solid foundation for the draft as a whole, and in particular the procedural obligations of assessment, information and consultation contained in the subsequent articles.  He said it was unclear, however, how the obligation of prevention related to the provisions in articles 9 and 10 requiring an equitable balancing of interests.  The United Kingdom would be concerned if that concept were to be interpreted in such a way as to undermine the obligation of prevention.

He noted with satisfaction the savings provision in article 18, to the effect that the articles were without prejudice to any obligation incurred by States under relevant treaties or rules of customary international law.

He said, negotiating a convention on the basis of the draft articles was not necessarily the most effective use to which the work of the International Law Commission could be put.  Instead, he suggested that the Assembly might adopt a resolution recommending that States be guided by the draft articles in the conduct of their relations and in particular when negotiating relevant agreements at both the bilateral and multilateral levels.  He also recommended that before the Commission took any decision to return to the issue of liability, it might usefully survey the various treaties which dealt with liability questions, and ongoing projects in other forums.

On the question of reservations to treaties, he said he welcomed the Special Rapporteur's reconsideration of the need for additional guidelines on "conditional interpretative declarations" since there was a real doubt as to whether such a category could be said to exist independently of reservations.  He noted the restrictive approach taken on late formulation of reservations, and said that as a general rule late reservations were not permissible and such a practice should be encouraged.

He said the Special Rapporteur's conclusion on unilateral acts tended to confirm that an attempt to develop a body of rules applicable to all unilateral acts was not well founded.  He noted the steady progress being made on diplomatic protection and appreciated the Special Rapporteur's work both for the clarity of its analysis and for the open-minded approach to the subject.

ZDZISLAW GALICKI (Poland) said the scope of the draft articles on prevention should not be limited to the harm caused to areas within national jurisdiction only.  It would be in the interest of the international community as a whole to extend preventive protection also to the environment not limited by State boundaries.  He said it would be useful to consider whether obligations on prevention should be exclusively procedural in nature as proposed, or should include some substantive requirements to mitigate or prevent certain impacts.  His delegation favoured the second suggestion.

Poland fully endorsed the Commission’s recommendation that the General Assembly elaborate a convention based on the draft articles on Prevention of Transboundary Harm from Hazardous Activities.  Although there was already a number of regional environmental impact agreements, or others under negotiations, his delegation felt there was room and a need for a universal instrument to deal with the problem.  The Commission’s draft articles represented a notable attempt at progressive development of international law.  He suggested that the draft articles be annexed to a General Assembly resolution and widely disseminated.  That could protect and preserve international legal regulations concerning prevention of transboundary harm from hazardous activities.

He recommended the continuation of the Commission’s work on the elaboration of a convention on the issue of liability, which would be of great significance to the codification and progressive development of international law.

BRENDAN GRIGG (Australia), supporting the elaboration of a convention on the basis of the draft articles, said the draft articles incorporated established principles of environmental protection and would provide a sound foundation for a convention.  Commenting on specific provisions, he said Australia believed it was particularly important that the articles applied to transboundary harm across maritime borders, including adjacent exclusive economic zones.

Since transboundary harm was often regional in character, Australia wished to record its understanding that the phrase "competent international organizations" in article 4 should be read to include relevant regional organizations.  The concept of "appropriate measures" in article 3 needed to be more precisely defined.  It might also be useful to clarify the language of the provision in article 6 on authorization, to more precisely reflect that it was the State of origin that granted the authorization to an entity which intended to undertake or was carrying out potentially hazardous activities.  Australia was satisfied with article 19 on the settlement of disputes insofar as it provided for choice of settlement by mutual agreement and, failing such agreement, provided recourse to an impartial fact-finding mission.

JUAN MANUEL GOMEZ ROBLEDO (Mexico) said the International Law Commission should begin work as soon as possible on the second feature of transboundary harm, namely liability.  It was not possible for the General Assembly to limit itself to adopting an instrument on responsibility for prevention of transboundary harm without also having a set of norms that dealt with the essence of the regime.  The Assembly should therefore take note of the draft articles, and then resume its consideration of the liability aspects.  Only then could it produce a convention.  He encouraged States to submit their written comments on the liability issue.

He said the obligation to prevent harm and the obligation to pay reparations were inextricably linked.  One of the principles in the Rio Declaration pointed to the need to cooperate to expedite the development of international law in the sphere of responsibility and compensation for environmental damage.  A liability regime would also discourage activities that might pose risks.  Given the ecological unity of the planet, the consequences of transboundary harm went beyond the direct interests of affected States.  Also, it was manifestly unfair to expect the victims and States suffering to carry the burden of damage.

Commenting specifically on the text of the draft articles, he said the International Law Commission had wisely striven to achieve a balance between the need to avoid those activities in a State of origin that could potentially affect other States with the recognition of the freedom of States to carry out and authorize activities within their territory.  The Commission had made clear that the obligations extended to all phases of an activity.  Another positive feature in the draft articles was the procedures available when notification did not take place.

He said the possibility of the establishment of future controls over activities not covered by the draft articles but that could pose a risk of transboundary harm should not be prejudged.  In article 2, the International Law Commission recognized that the planet's ecological unity did not correspond to borders of a political nature.  However, the draft articles were oriented toward bilateral or inter-State concepts of territory and jurisdiction, and did not pursue risks to the environment beyond areas of national jurisdiction.

He added that more attention should be paid to the precautionary principle in light of its importance under contemporary international law.  Explicit references to clarify how that principle interacted with prevention obligations were needed.  The Commission had shown excessive caution in article 19 on settlement of disputes, by simply proposing impartial fact-finding missions.  He would have preferred the draft text to include a second stage that would include mechanisms of a more binding nature.

ELANA GEDDIS (New Zealand) said the draft articles on prevention had been valuable to focus on the “first limb of the topic”, the duty of a State to take preventive action where activities in areas within its jurisdiction risked causing adverse consequences to another State.  The text provided a valuable framework of key provisions governing the obligations of States on whose territory hazardous activities or areas under their jurisdiction were being undertaken.

She said New Zealand found a number of useful elements in the text such as the clear statement of the obligation of States of origin to take all appropriate measures to prevent significant transboundary harm.  Others included the clear application of the articles to activities (not prohibited by international law) which involved a risk of causing significant transboundary harm through their physical consequences.

It was important, she went on, to recognize that transboundary harm could take a number of forms.  It could also include a situation where harm could take the form of economic loss and stem from the risk of physical consequences flowing from a particular activity.  It was also important that the risk situations covered were not artificially limited to those where there was a high or low probability of significant transboundary harm.  There might be medium-risk situations where preventive action might be justified and where the level of risk involved was not relevant.

There was a need for careful weighing of the close relationship between the prevention and liability aspects of the topic, she said.  Prevention should be preferred policy, since compensation often could not restore the situation that existed before.  Proper attention to risk assessment, prevention activities and response preparedness was therefore of critical importance.

She said legal principles must be elaborated both to provide for effective liability of the responsible operator, as well as for the residual one of the States where there was no effective operator liability.  The second aspect of the topic should also be the subject of draft articles.  The two aspects of the topic, prevention and liability, could then be considered together, taking account of their interdependent and complementary nature.

The most appropriate way forward for the Sixth Committee, she said, was to welcome the conclusion of the draft articles, but to reserve further action on them to allow for work on the liability aspects to be taken forward.

LUIZ RAUL ESTEVEZ-LOPEZ (Guatemala) said his delegation supported the statement on the topic made to the Committee by the representative of the Netherlands on 2 November (Press Release GA/L/3191).

On article 2, on the use of terms, he said his delegation preferred last year’s formulation, compared with the present provision.  He said Part 1 of article 9 on consultations on preventive measures should be amended.  He expressed regret that the text made it possible for the State from where the harm originated not to admit responsibility.  The only option would seem to be recourse to dispute settlement.

Concerning the establishment of a fact-finding commission, provided for under article 19, he said the body should have conciliation powers.  The proposal should be inserted in the text.  He supported the view of the Nordic countries that greater emphasis should be placed on conciliation in the question of dispute settlement.

DIMITRY A. LOBACH (Russian Federation) said the merit of the draft articles lay in the principle of balance of interests.  He believed it was possible to have the General Assembly elaborate a framework convention in the form of a universally binding regime on prevention of transboundary harm.  There should, however, be some flexibility to allow regional agreements to be taken note of.

He drew attention to the provisions of article 8 concerning notification of, and information about, risks of significant harm being caused.  (The article also provided that the State of origin would not take any decision on authorization of the activity pending the receipt, within a period not exceeding six months, of the response from the State likely to be affected).  He said it was not clear whether the six months was final. 

He also said there were no clear criteria about how the State of origin of the harm should take account of the interests of affected States.  The criteria should be based on equitably balanced interests of all involved.

He noted that article 9 on consultation regarding preventive measures did not contain provisions for suspending activity during consultation.  The State of origin of the harm should refrain from any activity for six months during the consultations on preventive measures.

He said the provisions of article 18 concerning the relationship of the draft articles to other rules of international law should apply only when those rules were not reflected in practice.  In such cases, customary international law might be useful, he said.

NARINDER SINGH (India) described the effort of the International Law Commission to integrate needs of development with priorities for environmental protection as praiseworthy.  He said he was gratified to see that the phrase "activities not prohibited by international law" had been retained, as it was essential to indicate that further work remained to be done on the subject of liability following the adoption of the articles on prevention.

India had an open mind, he said, as to the timing and scope of the study to be undertaken.  He took note of the provisions in several articles, including article 19 which he said had been a compromise proposal between those demanding a more comprehensive compulsory system of settlement of disputes and those who rejected a reference to any compulsory procedure, including a compulsory fact-finding mechanism.

He said that India, in previously applauding the International Law Commission on the topic, had noted that it should be treated more as a progressive development of international law, particularly in respect of the obligations concerning the management of risk and engagement between States of origin and States likely to be affected.  India had also emphasized the need to give due emphasis to issues concerning development and the transfer of technology and resources, with a view toward capacity-building in the developing countries.  While he welcomed the draft articles, he underscored the need to place the entire effort of risk management of hazardous activities which were indispensable for development in the overall context of the right to development.

He said the "precaution" and "polluter pays" principles, taken into consideration in article 10, could not be invoked as strict legal obligations.  States concerned would be guided by their economic policies and priorities, and the overall benefits sought to be maximized for their populations.  He said he supported the recommendation that the draft articles were now ready for adoption as a framework convention.

RICARDO BOCALANDRO (Argentina) said the draft articles represented an adequate system of international rules on prevention of transboundary harm.  The International Law Commission had adopted a balanced approach between the interests of States where dangerous activities originated and the interests of States that might be affected by those activities.  The draft articles could serve as the basis for a future convention on the codification and development of international law in the area.

He said he welcomed the prospect of the International Law Commission now beginning to elucidate the various aspects of the liability theme on transboundary harm.  Clearly, non-compliance with such obligations as enunciated in the draft articles on prevention would give rise to international responsibility on the part of a State.  He pointed in particular to the application of norms for responsibility for illicit acts.  Equally important was the clarification of other aspects of liability such as, for example, what would be necessary to precisely determine what responsibility was borne by the State of origin that caused damaged in other territories.  To what degree must the State of origin, in those circumstances, contribute to compensation and restitution for damage, whose magnitude, particularly in the case of environmental damage, could be considerable?

It would also be necessary to include general rules for operators when their activities gave rise to substantial harm to persons or property in other States.  In that context, it was important to give due attention to the principle of "polluter pays".  That consideration should include provisions on procedural norms to provide access for persons of affected States to the administrative and judicial systems of the State of origin to invoke responsibility, including the determination of compensation.  Also, there should be rules articulating the limit on amounts and the time limits for damage.  There must also be an obligation to take timely measures, including clean-up.  Furthermore, the eventual responsibility of the State when an operator could not cover the costs needed to be addressed, as well as procedures for settlement of disputes.

ANDREAS JACOVIDES (Cyprus), speaking on article 19 on settlement of disputes, said it provided a basic rule for settlement of disputes that arose from the interpretation or application of the regime of prevention covered by the articles and was inspired by the provisions of article 33 of the Convention on the Non-Navigational Uses of International Watercourses.

He said he welcomed the reference in article 19, paragraph 6, that the parties to the dispute should consider in good faith the findings and recommendations of the fact-finding commission.  However, he agreed with others that the provision should be strengthened by giving a bigger role to arbitration and judicial settlement.

BOGDAN AURES (Romania), speaking on all topics dealt with by the Commission, said the draft articles on State responsibility were not only a well-balanced compromise between different views and interests, but also an excellent reflection of customary law.  The commentaries to the text were extremely valuable in providing future guidance for both academics and practitioners of international law.

On countermeasures, he welcomed the approach adopted by the Commission to ensure a fair balance between legitimate interest of a State to defend its rights and that of the responsible State to be protected against abusive use of the measure.  Limiting recourse to countermeasures, especially prohibiting the use of force, was a significant achievement.

He welcomed the approach taken by the Commission in focusing first on the prevention aspect of transboundary harm.  It was an important basis for further work by the Commission on liability for acts not prohibited by international law.

With regard to reservations to treaties, he said the concept of conditional interpretative declaration as defined in the draft guidelines prepared by the Commission had occurred in practice.  His delegation was concerned about the establishment of a guideline in the text enabling State parties to a treaty to formulate reservations at a later date.  It might encourage States to make use of it, thereby destabilizing the Vienna Convention on reservations to treaties.

JURG LINDENMANN, Observer for Switzerland, said the draft articles represented a valuable and significant part of the question of transboundary harm.  Switzerland had always supported the Commission’s stage-by-stage approach to its work.  While important work had been done on it, the text on prevention was incomplete.  He recalled that the General Assembly had last year requested that the Commission resume consideration of its work on the liability aspects of transboundary harm as soon as it concluded work on prevention.

The task should also include the obligation of States to include the “polluter pays principle” in their domestic legislation; provide justice to those suffering from harmful activities, and work on a provision on residual liability.  He was pleased with the progress achieved on the text on prevention.

He believed the time had come for the Commission to resume work on liability, which would deal with all aspects of the transboundary harm.

Statement by Special Rapporteur

PEMMARAJU RAO, Special Rapporteur on the question of International Liability for injurious consequences arising out of acts not prohibited by international law (Prevention of transboundary Damage from hazardous activities), responded to comments made during the debate on the text.  He noted the comments that the scope of the text would have covered all aspects of the question, to include prevention of harm to the global commons.

On the question of dispute settlement, he said the Commission had heard the strong views that there should be a lengthier period.  He explained that in draft articles, the rule was limited.  He said the Commission would be guided in its future work on the topic by the recommendations given to the General Assembly by the Sixth Committee.

The meeting was adjourned.

When the Committee met again this afternoon to resume its consideration of the report of the International Law Commission, it took up the Commission’s work on procedures regarding reservations and interpretative declarations.

PETER KABATSI, Chairman of the International Law Commission, said the Commission had adopted 12 guidelines on the topic, accompanied by commentaries that provided the necessary examples and clarifications.  The Commission also considered the sixth report of the Special Rapporteur relating to the modalities of the formulation of reservations and interpretative declarations.  The Commission referred 13 draft guidelines dealing with various aspects to its drafting committee.

He introduced 12 guidelines adopted by the Commission at its fifty-third session, highlighting the main issues addressed in them.  He noted that draft guideline 2.2.1 on formal confirmation of reservations formulated when signing a treaty reproduced the exact wording of article 23 paragraph 2 of the Vienna Convention on the Law of Treaties between States and International organizations, or between International Organizations.  The draft guideline established the principle of the obligation of confirmation of reservation formulated when a treaty was being signed.  The obligation had now become part of positive international law, he said.

The Commission reiterated that principle and also considered the effect of State succession on the implementation of the principle, the list of cases in which a reservation must be confirmed and the case of “embryo reservations” constituted by statements made before the signing of a treaty.

He also referred to provisions dealing with the problem of late formulations of reservations which, he said, was a particularly sensitive and difficult issue.  He said draft guideline 2.3.1 established the principle that a State or an international organization might not formulate a reservation to a treaty after expressing its consent to be bound, except if none of the other contracting parties objected to the action.

There was also a provision (guideline 2.3.4) on subsequent interpretation of a reservation made earlier or of a unilateral statement made subsequently under an optional clause by which the author of the statement might not exclude or modify the legal effect of provisions of the treaty, he said.

The guidelines provided a rule that it was not necessary for simple interpretative declarations to be made when a treaty was being signed (2.4.4).  An important exception was made in guideline 2.4.5 which reflected current practice.  Under that practice, States wishing to make their participation in a treaty subject to a specified interpretation of the treaty generally, confirmed their interpretation at the time of expression of their consent to be bound, at the time of signature or even at an earlier moment.

Draft guideline 2.4.7 established the principle that a State or an international organization might not formulate a conditional interpretative declaration concerning a treaty after expressing its consent to be bound by it, except if none of the other contracting parties objected to it.  The consent, even tacit, was again a necessary condition for the valid formulation of a conditional interpretative declaration.

He said the Commission would welcome any comments and observations on three issues included in Chapter III of its report, namely the questions of conditional interpretative declarations; the issue of late formulation of reservations and, finally, the role of the depositary.

Statements

HUSAIN M. AL BAHARNA (Bahrain) said that draft guideline 2.3.1 provided stringent conditions for the acceptance of late reservations.  As long as a late reservation was not contrary to the Vienna Conventions, there was no reason why it should not be accepted in order to facilitate the adherence of States to treaties.  Moreover, State practice seemed to encourage that trend and it had also been adhered to by the Secretary-General in his capacity as depositary of the treaties in question.

He said he agreed with the reasoning in paragraph 4 of the commentary on guideline 2.3.4 to the effect that a reservation, once made, should not be used as a basis for formulating a new reservation under the guise of an interpretation of the existing reservation.  He did not agree with those who felt the guideline was not needed because of its lack of precision and exactitude.  Rather, the guideline complemented and balanced the previous three guidelines.  He suggested that, given their connection, guidelines 2.4.3 and 2.4.4 could be shortened and integrated into a single guideline.

He questioned whether it was necessary to repeat 2.4.6, since the commentary stated that the rule in guideline 2.3.1 relating to reservation was transposed to the guideline concerning conditional interpretative declarations.  He noted that some had questioned the necessity and acceptability of guidelines 2.4.4, 2.4.5 and 2.4.6 relating to interpretative declarations and conditional interpretative declarations which appeared to create a separate legal category.  However, he did not agree with that view, since the purpose of the guidelines was to fill in the gaps in the Vienna Conventions without modifying their provisions concerning reservations, while at the same time clarifying State practice through the process and procedure adopted in the draft guidelines.

GUAN JIAN (China) said conditional interpretative declarations, as distinct from simple interpretative declarations, would to a certain extent limit or modify the effects of articles concerned with a particular State Party, thus playing the role of reservations to treaties.  It was therefore a good idea for the draft articles to make a distinction between the two, without setting separate norms for the former and to make them subject to the same legal regimes as reservations instead.

As to late formulations of reservations, he said, in order to maintain the stability and predictability of treaty relations a State should raise its reservations before it agreed to be bound by that treaty.  However, the possibility should not be excluded that in particular circumstances a State might be allowed to formulate reservations after agreeing to accept the binding force of a treaty.

Referring to the role of the depositary as far as reservations to treaties were concerned, he said the depositary could examine the appropriateness of the form of reservation submitted, to see if it was in conformity with the relevant rules of the convention, and draw the attention of the State concerned when necessary.  The depositary should also inform other States Parties, or States which were entitled to become States parties, of reservations by a State.  However, a depositary was not an interpreter of the text of a treaty nor a judge on the compliance of a State's behaviour to the treaty.  Therefore, China did not believe that the depositary should be endowed with the right to review the legitimacy of reservations to treaties and to refuse to transmit reservations which he deemed illegitimate.  Instead he should inform other States Parties and let them make their own judgement.

UMBERTO LEANZA (Italy) said the Commission’s text on the issue of prevention of transboundary harm highlighted the obligation of States to consult mutually as soon as possible on such issues.  The draft did not give States the right of veto regarding hazardous activities undertaken on their territory.  He welcomed the approach taken by the Commission in the preamble to text.  He also noted the essential reference to the principle of precaution and sustainable development in the text.

He said limiting transboundary harm to lawful activities did not seem to be in keeping with the Stockholm and Rio Declarations on the environment.  He stressed the importance of article 4 concerning cooperation by States in good faith with, and if necessary, the assistance of competent international organizations in preventing transboundary harm, or minimizing it.

He noted that procedural rules in the text did not impose obligation until evaluation carried out.  He referred to provisions of the draft articles, which had been improved, including article 11 on procedures to be carried out in the absence of notification about transboundary harm.  He also noted the modifications to article 12 emphasizing information exchange among States concerned, activities to be carried out by them.  He said the provision was important because it stipulated that the exchange of information would continue even after the activity had been terminated.

He reaffirmed his delegation’s view that the Commission must still deal with the issue of liability after the completion of its work on prevention.  The draft articles, with modifications, constituted a significant result of risk management.  His government was not opposed to a convention being elaborated on the basis of the draft articles.

On the question of reservation to treaties, he observed that there had been an attempt to bring the text in line with the Vienna Convention on the Law of Treaties.  He said the phenomenon of late formulations should be limited, and States should strive to ensure that the practice was used in exceptional cases.

The draft guidelines constituted reference points for international practice.  It was still part of a broader framework, which should include acceptance of reservations.

CHOUNG IL CHEE (Republic of Korea) spoke first on diplomatic protection.  He noted that succession of states, marriage or adoption often entailed acquisition of new nationality with automatic loss of previous nationality of individuals.  This could result in the deprivation of social and pension benefits, or restrictions on the removal of property out of the State of previous nationality.  Those hardships and suffering should be avoided; diplomatic protection by a new State should not be prohibited against the previous State of nationality.  He therefore suggested the deletion of paragraph 4 of article 9.

Recalling the International Court of Justice ruling in the 1970 Barcelona Traction case, which denied diplomatic protection for the shareholders of the company, he said the ruling had been criticized as inequitable to the shareholders.  His country believed that if damages and injuries were sustained by shareholders, a state of which the injured shareholder was a national should be able to exercise diplomatic protection on behalf of its nationals.  Evolution of international economic life with free flow of foreign investment and a rise of multi-national corporations now required diplomatic protection of foreign shareholders or investors.

On the issue of State responsibility, he endorsed the replacement of "serious breaches of obligations to the international community as a whole" with "serious breaches of peremptory norm of international law".  In article 19 on countermeasures it would have been helpful to give a definition of countermeasure, which could have added clarity and certainty to the concept.  Article 52 on conditions relating to resort to countermeasures imposed an unfair burden on the injured State and should be rectified.  While he favored the form of a binding convention for the draft articles, he understood that divergent views needed to be accommodated.  Therefore his government was inclined to support their attachment as an annex to an Assembly resolution and at a later stage to convene a conference.

Concerning unilateral acts of States, he said he questioned the wisdom of omitting unilateral declarations and conduct of States from the classification of acts.  To support that view, he cited two unilateral declarations which had evolved into norm-creating precedents:  the Truman declarations of 1945 in respect of Fisheries Conservation Zone and of the Continental Shelf.  He added that the "conduct" of States deserved an independent scrutiny, separate from the unilateral acts.