Fifty-sixth General Assembly

Sixth Committee

22^nd Meeting (PM)

LEGAL COMMITTEE IS WARNED PROPOSAL FOR LATE RESERVATIONS

TO TREATY TERMS COULD JEOPARDIZE EXISTING SYSTEM

Study of State Practice Recommended, as Review

of International Law Commission Report Continues

The topics of Diplomatic protection, Unilateral acts of States, and other decisions and conclusions of the International Law Commission were discussed this afternoon by the Sixth Committee (Legal) as part of its overall consideration of the Commission’s report on its fifty-third session.

Speaking on late reservations to treaties, the representative of Japan said the creation of a system of late reservations could jeopardize the integrity of treaties and harm the system of reservation established under the Vienna Convention on the Law of Treaties.  However, there existed some examples in State practice, and it was thus legitimate to study how to place such State practice in the law of treaties.

There was no obligation on a State to present a claim on behalf of an injured national under the law of diplomatic protection, said the representative of Norway, speaking also for the other Nordic countries.  Moreover, there should be no doubt that diplomatic protection was not recognized as a human rights institution and could not be enforced as such.

The representative of South Africa, speaking for the Southern African Development Community (SADC) States, said the continuous nationality rule still provided the best way of preventing individuals or corporations from engaging in "protection-State shopping" -- changing nationality to find a State prepared to bring a claim on behalf of the individual.  They believed, therefore, that the rule should be retained but that exceptions should be made to it, particularly where the individual had undergone an involuntary change of nationality after the injury.

Statements were also made by the representatives of Guatemala, Bahrain, China, Netherlands, Venezuela, Greece, Russian Federation and Kenya.

The Chairman of the International Law Commission, Peter Kabatsi, introduced the relevant chapters of the Commission’s report.

The Sixth Committee will meet again at 3 p.m. Thursday, 8 November to continue its consideration of the report of the International Law Commission.

Background

The Sixth Committee (Legal) met this afternoon to consider the remaining chapters of the report of the International Law Commission on its fifty-third (2001) session, covering, among other questions, Diplomatic Protection and Unilateral Acts of States.

According to the report, the Commission decided to hold a 10-week split session in Geneva from 6 May to 7 June and from 8 July to 9 August 2002.

Statements

PETER KABATSI, Chairman of the International Law Commission, introducing the report, said the Commission considered the addenda to the first report on diplomatic protection, by the Special Rapporteur, John Dugard.  The report focused on the issue of continuous nationality and the transferability of claims.  The Commission also began its consideration of the Special Rapporteur's second report, looking at those parts covering draft articles 10 and 11 concerning the exhaustion of local remedies rule.  It referred the remainder of his report, concerning draft articles 12 and 13, to its next session.

The Chairman said the debate in the Commission on the question of continuous nationality (article 9) indicated some support for the Special Rapporteur's approach to the subject.  Strong support was expressed for the view that the rule of continuous nationality enjoyed the status of customary international law.

A key issue in the debate was the relationship between diplomatic protection and the protection of individuals under international law, the International Law Commission Chairman said.  While exercising such protection, the State must take into consideration the human rights of the injured person.  Diplomatic protection was not a human rights institution per se.  At the same time, there was agreement that the rule needed to be made more flexible to avoid inequitable results.

Accordingly, he said, a strong preference was expressed for adopting a middle course whereby the traditional rule would be retained, albeit subject to certain exceptions, where the individual would otherwise have no possibility of obtaining protection by a State.

It was proposed that the Commission consider some additional issues relating to the nationality of claims.  Those included the case of international organizations, exercising both functional protection and diplomatic protection for one of their officials, and the case where a State or an international organization administered or controlled a territory.

In general the Commission supported article 11 which was considered to reflect prevailing practice.  It was proposed to merge articles 10 and 11.  The two articles and the preceding article 9 were submitted to the Commission's drafting committee for further consideration.  The views and comments of Sixth Committee members would be important in assisting the Commission in its further work on the topic, its Chairman said.  He drew attention to a section of the report inviting comments of governments on a number of issues relating to diplomatic protection and regarding the continuous nationality rule, and diplomatic protection in the context of legal persons.

On the topic of unilateral acts of states, he said the Commission considered the fourth report of the Special Rapporteur, Victor Rodriguez Cedeno, which dealt with two fundamental issues.  Those were the elaboration of criteria upon which to proceed with a classification of unilateral acts, and the interpretation of unilateral acts in the context of rules applicable to them, regardless of their material content.

The Chairman said the Commission had been having difficulties conceptualizing the topic of Unilateral Acts of States. While some members considered the subject important and suitable for codification, others found it unfit for that purpose, especially in light of the difficulties encountered in defining and classifying the acts.

The Commission agreed with the recommendation that the Secretariat should circulate a questionnaire to governments, inviting further information on their practice of formulating and interpreting unilateral acts.  The Commission urged States to reply as soon as possible to the circular that was sent on 31 August.

The Chairman said that in response to a request by the General Assembly, the Commission made an effort to implement cost-saving measures.  As in the past, it cooperated with other bodies, including with the Inter-American Juridical Committee, the Asian-African Legal Consultative Organization, and the European Committee on Legal Cooperation.

The Commission also organized its thirty-seventhannual session of the International Law Seminar, which took place in Geneva with 24 participants of different nationalities, mostly from developing countries.  So far, 831 participants, representing 150 nationalities, had taken part in the seminar since its inception in 1965.

The Commission attached great importance to the Seminar, he said.  It enabled young lawyers, especially from the developing countries, to familiarize themselves with the Commission’s work and the activities of many international organizations with headquarters in Geneva.  He expressed the Commission's gratitude to those governments that made contributions to the seminar, and urged those that could to emulate them.

ROBERTO LAVALLE-VALDES (Guatemala) said one of the problems which might come up concerning unilateral acts was that some acts would not be covered under the draft articles.  It should also be considered whether a certain unilateral act produced legal effects and what exactly those legal effects would be.  As the Commission discussed the topic of unilateral acts, it should leave aside most of what had been done in the past.  It should also create no new articles on the topic until there was greater consensus among Member States.  There was also a need for new terminology to be adopted in that regard.

The Commission should also consider creating a residual clause that would cover all other unilateral acts, which were not included in previous articles, he added.  Those acts could be called “non-identified unilateral acts”.  Another question was whether all the acts currently on the list should remain or be taken out.  The Commission also needed to determine, for each of the specific categories of acts, if there was a need for special rules and norms for those acts.

Work on new articles regarding unilateral acts could begin as soon as those questions had been addressed and the proper consensus had been reached, he added.  By addressing those matters, the Commission could prepare adequately and not run the risk of running blindly on the issue.

ALBERT HOFFMANN (South Africa), speaking on behalf of the Southern African Development Community (SADC) States, said the final draft articles on State responsibility now expressly left both the nationality of claims and the local remedies rule to be dealt with under Diplomatic protection.

Unlike the subject of Unilateral Acts of States, he said, Diplomatic protection was rich in judicial precedent, doctrine, State practice and codification attempts.  The codification exercise was essentially a choice:  the Commission was obliged to choose between competing rules in drafting its articles.

He said the continuous nationality rule in its traditional form required a claimant State to prove that the injured individual was a national at the time of the injury, at the time of the presentation of the claim and throughout the period between injury and presentation of the claim.  The SADC agreed with the Special Rapporteur that there were serious concerns about the continuous nationality rule in its present form.

Despite those concerns they believed that the continuous nationality rule still provided the best way of preventing individuals or corporations from engaging in "protection-State shopping" -- changing nationality to find a State prepared to bring a claim on behalf of the individual.  They, therefore, believed that the rule should be retained but that exceptions should be made to it, particularly where the individual had undergone an involuntary change of nationality after the injury.

The local remedies rule -- one of two controversial articles dealt with by the Commission -- was an essential feature of diplomatic protection, he said.  The SADC countries agreed with the description of the local remedies that must be exhausted.  They included judicial and administrative remedies, but not political favours.  They believed, however, that article 10 on local remedies should make it clear that the local remedy to be exhausted should be available and effective.  

He said the SADC countries were satisfied with the progress made on the subject of the draft articles, and expressed the hope that they would be confined to broad principles and completed in the next five years.

OLE PETER KOLBY (Norway), speaking also on behalf of the other Nordic countries -- Denmark, Finland, Iceland and Sweden -- said they agreed with the Commission that Diplomatic protection was ripe for codification and had great practical significance.  They firmly believed that the topic had not been made obsolete by the establishment of various dispute settlements to which individuals had been given access.  Work on it should be focused on practical rather than theoretical debates with the end result being a guide to practitioners.

He said there should be no doubt that diplomatic protection was a sovereign prerogative of the State of nationality of the person concerned, as a subject of international law.  That prerogative provided for discretionary right of the State.  For all practical purposes, the person concerned was in that connection to be considered as a beneficiary of international law.  There was no obligation on the State to present a claim on behalf of an injured national.  Moreover, there should be no doubt that diplomatic protection was not recognized as a human rights institution and could not be enforced as such.  A distinction should be made between human rights and diplomatic protection.

On the question of continuous nationality, the Nordic countries supported the view expressed by many in the Commission that the rule on the subject enjoyed the status of customary law.  Furthermore, they shared the view that the general trend in international law of protecting individuals, however positive, did not provide a justification for changing the continuity rule.  They would therefore like to see the traditional rule retained in article 9 (continuous nationality).  They supported the view that the State with the dominant and effective link was the one that was entitled to act on behalf of its national.

On the topic of Unilateral Acts of States, the Nordic countries said they could go along with the provisions concerning a general rule of interpretation and supplementary means of interpretation, as proposed by the Special Rapporteur.  They voiced concern, however, about the general direction of the Commission's work on the topic.  They reiterated that there was no need for a comprehensive set of rules on the subject; a more focused approach limiting the topic to a few general rules and a study of certain particular situations would be welcome.

HUSAIN AL BAHARNA (Bahrain) said diplomatic protection was one of the oldest institutions in international law, but it continued to be one of the most controversial.  That was true because of the conflicting and complex theoretical and practical issues involved in it, one of which was the question of violation of human rights.  Although it was agreed that the key issue in diplomatic protection was the protection of the rights of individuals, the topic of diplomatic protection should not be treated as a human rights issue.  It was agreed that diplomatic protection was basically exercised at the discretion of the States to which the individual belongs as a national.

However, conflict still arose, in theory and in practice, on the question of a State’s espousing international claims on behalf of its nationals, he said.  Was the State’s prime object to ensure its own rights as a sovereign State or merely to seek diplomatic protection on behalf of its own nationals?  There were such mixed claims involving both the rights of the State and the rights of individuals.  What was needed perhaps was a flexible approach to the problems arising from the issues of diplomatic protection in order to strike an equitable balance between the interests of the States and those of its nationals on behalf of whom diplomatic protection procedures were instituted.

Another complication in that regard was the existence of State practice, jurisprudence and doctrine on the law of diplomatic protection, he said.  Those sources of law seemed to point in different directions.  Despite those complications, the International Law Commission should work to formulate new rules from those conflicting sources of law on the topic within the framework of its mandate on progressive development of international law.  The Commission should, therefore, adopt a more liberal and progressive approach to the subject of diplomatic protection rather than a conservative one.

GUAN JIAN (China) observed that the key issue at the centre of the debate in the International Law Commission concerning diplomatic protection was its relationship between diplomatic protection and individual rights.  The Chinese delegation believed that diplomatic protection, as a mechanism in international law, was in essence a means to regulate inter-State relations.  The right of diplomatic protection was a State and not an individual right.

He said a necessary condition for a State to exercise the right of diplomatic protection was that there existed a legal relationship between the State and the individual based on his or her nationality.  The Chinese delegation therefore supported the view of the majority of the Commission members that the rule of continuous nationality be maintained and that it become a basic standard rule when States exercised diplomatic protection.

He said diplomatic protection of companies should also have a prerequisite that there existed a legal relationship between the State and the company based on its nationality.  The nationality of the company could be based on where the company was incorporated or registered.  That was a prevailing practice in many countries.  Chinese law had similar stipulations.  Shareholders of a company and the company were two different legal concepts.

An injury caused by the State's actions to a company did not necessarily give claim rights to shareholders.  Only the State, whose nationality a company had acquired through incorporating or registering in the State, had the right to provide diplomatic protection to the company.  In addition, he said it was not appropriate for the State whose nationals were shareholders to exercise diplomatic protection vis-à-vis the State in which the company had been incorporated or registered.  If an individual foreign shareholder of a company was injured by the international illegal actions of a State in which the company had been incorporated or registered, the State, whose nationality the individual shareholder held, had the right to provide diplomatic protection. But that was within the scope of diplomatic protection for individuals and companies, he said.

On the topic of unilateral acts of States, he said those were often taken in international relations and were becoming increasingly important.  Its codification and progressive development was necessary, he said.  As those acts related to a broad range of issues, he said different unilateral acts produced different legal consequences, and establishing clear rules and systems was difficult.

The draft articles could be divided into three parts:  a general section, rules relating to acts whereby the State undertook obligations and those that related to acts whereby the State reaffirmed its right.  China believed that the classification of unilateral acts was desirable, but whether the two major categories stated in the Commission's report were appropriate merited further consideration and study.

He said the Commission should focus on formulating and considering general rules applicable to unilateral acts.  He said the time was not ripe for the question of interpretation of unilateral acts to be considered.

CARL J.M. PEERSMAN (Netherlands) said that, at its fifty-second session last year, the Commission had discussed draft article 8 which provided for the exercise of diplomatic protection on behalf of persons who did not have the nationality of the State exercising the protection, but who were stateless or refugees.  The matter was included in the Commission’s questionnaire, which was submitted to Member States.  In response, the Netherlands had provided affirmative answers to the question whether the State in which a stateless person had lawful and habitual residence was entitled to protect such a person against another State along the lines of diplomatic protection. 

He said his country also had answered affirmatively to the corresponding question concerning refugees, to the extent that the protection of the latter was exercised vis-à-vis third States.  He recognized that the exercise of diplomatic protection on behalf of a refugee vis-à-vis a State of which the refugee concerned possessed the nationality would most probably not be very effective.  In summary, it seemed that from a human rights perspective it was to be welcomed if a system of protection analogous to diplomatic protection could be set up for the benefit of stateless persons and refugees.

Recently, the Netherlands had raised the issue of consular assistance to detainees with a double nationality whose dominant nationality was that of the State providing the assistance, he said.  That issue was raised in the framework of the Legal Advisers Group of the European Union.  The reason for raising the issue was the problems Dutch consular officers, posted in a certain country, were experiencing in their attempts to have access to Dutch detainees, who also had the nationality of the State of detention.  Although that was an issue of consular assistance and not of diplomatic protection, the same conclusions could be drawn:  the dominant nationality could be opposed to the nationality of the weaker link.

HIDEHISA HORINOUCHI (Japan) said that while he supported the efforts of the Commission in producing the guidelines on the topic of reservation to treaties, the draft articles might be too detailed and complex to be used by States.  The conceptual distinctions among different categories were meaningful only if such differentiation was accompanied by an adequate clarification of the legal effect of each category.  In that regard, he questioned whether late formulation of a reservation was somewhat outside the scope of the topic of reservations to treaties.  The creation of a system of late reservation could jeopardize the integrity of treaties and harm the system of reservation established under the Vienna Convention on the Law of Treaties.

However, he said, there did in fact exist some examples in State practice of formulating a reservation after the conclusion of a treaty.  It was thus legitimate to study how to place such State practice in the law of treaties.  Those examples could be regarded as agreements by contracting States that the treaty concerned was modified only with regard to the late-reserving State and to the extent that the so-called late reservation was made, or that the treaty was modified only with regard to the late-reserving State and the Parties agreeing to such a modification.

He said that, obviously, States could agree to whatever they wished.  However, Japan had not found a convincing reason why a specific State should not be allowed to derogate from a part of the treaty obligations when all the Parties accepted such a derogation.  Even so, whether non-objection within a 12-month period should be regarded as an acceptance by all Parties to the treaty was a different matter.  In any event, Japan considered that late reservations were not desirable and should be avoided as far as possible.  Therefore, it would be quite problematic if the inclusion of a late formulation of a reservation were to result in encouraging such undesirable practices and thus jeopardize the integrity of the treaties.

ANGELA CAVALIERE DE NAVA (Venezuela) said the Commission’s work on transboundary harm took account of the interests of all states involved.  There was a need for effective cooperation among States on that topic and the draft articles laid the groundwork for such cooperation.  The obligation to prevent harm constituted the cornerstone of the draft articles, which should prevent significant transboundary harm or minimize it in many cases.  States must take measures that prevented harm, and such action must be put into a legal framework.  That was an obligation of good conduct that States must abide by, especially in regard to environmental effects of transboundary actions.

Assessing the possible transboundary harm of a particular action was especially important in efforts to eliminate such harm, she said.  The State of origin had an obligation to determine the harm that could be caused by a certain practice.  In that regard, it was important for the State of origin to notify the State or States of the potential harm that could be caused.

On future work of the International Law Commission, she said the topics of the international responsibility of international organizations and shared natural resources should be taken up next year.  Two rapporteurs should be assigned to study those topics and they should submit their reports on them to the Commission during its next session.

MARIA TELALIAN (Greece) said the Commission should embark upon a thorough examination of the existing liability regimes, and try to elaborate its own general principles concerning State liability.  In that respect, there had been important developments in international law concerning those issues.  Such developments had taken place for example in the context of civil liability agreements for transboundary injury.  That agreement provided for the channelling of liability and guaranteed the availability by States, on whose territory the risk-involving activity was carried out, of a fixed compensation amount for damages caused as a result of an accident, a part of which was reserved exclusively for transboundary damage.

She added that States parties to those agreements had the obligation to ensure the availability of such compensation through a funding mechanism, which consisted of many options such as private insurance, an operator pool, public funds or regional agreements.  What was interesting to note was that some of the liability conventions also provided for an international supplementary fund to be established by the financial contributions of Member States, a certain amount of which was allocated exclusively to cover transboundary damages.  All those possibilities should be explored.

On the topic of reservations to treaties, she said they simplified a State’s accession to a treaty and thus secured a greater participation of States in international human rights instruments.  However, recourse to that technique should be reduced as it may seriously impair the integrity and unity of the treaty itself and undermine the effectiveness of its provisions.  Indeed, a reservation to a human rights treaty undermined its basic aim, which was the harmonization of State action in the field of human rights protection.  Similarly, a reservation had the effect that State parties were no longer bound by the same international obligations and that undermined the equality that should prevail among them, which might complicate their treaty relations. 

DIMITRY A. LOBACH (Russian Federation) said that in general, his delegation was satisfied with the results of the Commission's work on the topic of Reservations to Treaties.  The guidelines to practice should be practical in nature. He hoped the Commission would find a way to speed up its work on the topic.  His delegation believed that the effects of reservations and conditional interpretative declarations were identical, and so the guidelines relating to the latter should be deleted except for a general guideline indicating that the guidelines relating to reservations applied mutatis mutandis.  The final decision on whether draft guidelines to conditional interpretative declarations should wait after the Commission had considered the effects of reservations and of conditional interpretative declarations.

He said the guide to practice should not contravene the provisions of the Vienna Convention on the Law of Treaties.  The provisions on functions of depository (2.1.7) should be retained in its current form.  When a treaty prohibited reservations, the depositary had the right not to accept reservations formulated by a State party.  He would have to provide reasons for his or her action.

On the topic of Diplomatic protection, he said the Commission should adopt a prudent approach in its work on the subject.  He said article 9 on continuous nationality was a noble element.  The rule of continuous nationality had been supported by many court cases and by international law.  He supported the view of a majority of the Commission that the rule should be retained.  He also supported the inclusion of the provisions on exhaustion of local remedies contained in articles 10 and 11.

He said the topic of unilateral acts of States required a pragmatic approach.  The inclusion of certain provisions gave rise to doubts such as the treatment of interpretative declarations that differed from other unilateral acts.  He said the object and goals of unilateral acts should be taken into account in any provision on their interpretation.

He supported the Commission's plan to consider the responsibility of international organizations in the future.

KAREN ODABA (Kenya), said her government supported the Commission’s recommendation that the General Assembly take note of the draft articles on State responsibility in a resolution.  It also supported the recommendation that the Assembly, at a later stage, consider convening an international diplomatic conference to examine the articles and adopt a convention.  She, however, urged that given the importance of the subject, action on the draft articles should be taken as soon as possible, possibly during the current General Assembly session.

Speaking on reservations to treaties, she said the existing regime on Reservations, as enunciated in the Vienna Conventions, should not be derogated from or modified by the guidelines developed during the consideration of the topic.  The guidelines should aim at filling in any gaps that might exist under the current regime and should clarify the scope of application of the provisions of the Vienna Conventions.

On the late formulations of reservations, she called for caution in the endorsement of a regime that permitted such action.  Although the principle of

late formulations of reservations followed established practice, she said it was contrary to the provisions of the Vienna Conventions.

On diplomatic protection, she said the rule of continuous nationality was a longstanding one of customary international law.  She supported the view of the Commission that the provision on the subject should be recast to give greater emphasis to the rule.  She also said a distinction should be drawn between voluntary and involuntary change of nationality.  That could be used as a guideline for drawing up exceptions to the continuous nationality rule.

* *** *