Fifty-sixth General Assembly

Sixth Committee

23^rd Meeting (PM)

LEGAL COMMITTEE CONTINUES DEBATE ON LAW COMMISSION REPORT;

REVIEWS CLASSIFICATION OF UNILATERAL ACTS OF STATES

Other Aspects also Discussed; New Agenda Items To Be Taken up Tomorrow

The Sixth Committee (Legal) this afternoon resumed its consideration of the topics of diplomatic protection, unilateral acts of States, and other decisions and conclusions contained in the International Law Commission’s report on its fifty-third session.

On the difficulty of classifying the categories of unilateral actions, Bahrain’s representative said it was the Special Rapporteur’s task to do so.  He should submit to the Commission draft articles on the first category of unilateral acts, which related to acts whereby a State undertook obligations, such as a unilateral promise.  In that way, the Commission could share the complexities of the exercise and perhaps find a way out for the most difficult points of that issue.

The representative of France said the question of classification was theoretically interesting, but was not important for State practice.

On the question of diplomatic protection, Mexico’s representative said much work had been done.  It was the prerogative of the State and not of the individual.  There were specific considerations for the diplomatic protection of legal persons, such as for employees of corporations.  Consideration should be given as to whether they should be included.

Also this afternoon, the representative of Egypt introduced a draft on the report of the Special Committee on the Charter of the United Nations and on Strengthening the Role of the Organization.

Ukraine’s representative introduced a draft on implementation of the provisions of the Charter of the United Nations related to assistance to third States affected by the application of sanctions.

The representatives of Haiti and Italy also addressed the Committee.

The Sixth Committee will meet again at 10 a.m. tomorrow, 9 November, to conclude its consideration of the International Law Commission’s report.  It is also expected to begin consideration of two new items, one on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law.  The other is the report of the Committee on Relations with the Host Country.

Background

The Sixth Committee (Legal) met this afternoon to continue its examination of 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.

Also this afternoon, the Committee was to hear the introduction of a draft resolution on the report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization (document A/C.6/56/L.14).  A revised draft resolution on the implementation of the provisions of the Charter of the United Nations related to assistance to third States affected by the application of sanctions (document A/C.6/56/L.6/Rev.1) was also to be introduced.

      Introduction of Texts

MOHAMMED MAHMOUD GOMAA (Egypt) introduced draft resolution A/C.6/56/L.14 on the Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization.

OLEH HERASYMENKO (Ukraine) introduced the draft text on the Implementation of the provisions of the Charter of the United Nations related to assistance to third States affected by the application of sanctions.

The Sixth Committee will act on the draft resolutions tomorrow.

Statements

HUSAIN AL BAHARNA (Bahrain) said it was premature for the Special Rapporteur to present to the Commission draft articles relating to the application of the rules of interpretation concerning unilateral acts.  That step should be preceded by the preparation of a text that was agreed upon by States, including an agreed-to definition.  That exercise should be undertaken before the presentation of the draft articles on interpretation of unilateral acts.  So far, the Special Rapporteur had formulated eight draft articles on the topic.  However, many of those articles had given rise to controversial issues.  They needed to be perfected and improved in accordance with the comments made by the Commission and the Sixth Committee.

He said he appreciated the difficulties which the Special Rapporteur would encounter in the complicated exercise of classifying the various categories of unilateral acts.  However, it seemed to be his task to find a way out of that exercise.  Consequently, he should submit for the consideration of the Commission draft articles on the first category of unilateral acts.  That category related to acts whereby the State undertakes obligations, such as unilateral promise.  In that way, the Commission could share with him the complexities involved in the exercise relating to such classification of unilateral acts.  The Commission could, perhaps, find a way out for the most difficult points of that issue.

There appeared to be sufficient material relating to various forms and categories of unilateral acts, which could be classified and properly formulated in draft articles, he added.  To take the example of the declaration, there were many different types of declarations, especially those relating to a unilateral promise.  Those various declarations as revealed in State practice or in international law cases, could be verified and properly classified and grouped under one or more categories.  It may be suggested that each specific example of a unilateral act may require a specific definition within the separate category to which it belonged.

JEAN-LUC FLORENT (France) said the classification of unilateral acts was difficult.  The question of classification was interesting from the theoretical point of view, but was not important for State practice.  The provisions of the draft articles would be difficult to apply due to the rather special nature of unilateral acts.  The determining factor regarding interpretation of unilateral acts should be the intention of the State.

On diplomatic protection, he said the question was subject to certain conditions established by the International Court of Justice in the Mavrommatis/ Palestine Concessions case, and sometimes raised a number of difficulties in international law.  The Commission's work on the topic should be limited to codification of State practice. 

Article 9 on continuous nationality reflected the predominant influence of what he called a "human rights" logic, and he said he doubted seriously that the study suggested by the Commission was timely in such a spirit.  It would be opportune for the Commission to define the nationality link of physical persons or the conditions in which nationality was granted.  On the other hand, it might be useful to attempt to define the conditions for opposing nationality in the context of diplomatic protection.

He said the Commission should interest itself in the question of knowing whether recourse to non-national jurisdiction (but which is accessible to all nationals of the State) could or could not be considered as an internal recourse, even if a literal interpretation would lead one to an interpretation.

JUAN MANUEL GOMEZ ROBLEDO (Mexico) said he would address the issues of reservations to treaties, diplomatic protection and the Commission’s future work. 

With regard to the first, he examined specific articles and elements, saying the guidelines on the reservations were useful but there must be full harmony between them and the relevant provisions of the Vienna convention.  The Commission should focus on those parts that were clearly defined.  The Commission was right to wait before reaching a decision on reservations since it was possible a chapter on conditional interpretative declarations would have to be included. 

He said considerable work had already been done on diplomatic protection and there should be no overlap.  The main point was that diplomatic protection was a prerogative of a State and not of an individual.  The State enjoyed complete freedom of action; any attempt to confuse or merge the two areas would lead to confusion or conflicts.  Diplomatic protection for legal persons had specific considerations, as in the situation of corporations whose people worked in a number of countries.  Consideration should be given as to whether those people should be included.  On the rule of continuous nationality, consideration should be given to instances of involuntary changes of nationality.  The rule should be flexible.

As to the Commission’s future work, he said the summaries made it possible to identify the subjects that should be taken up and those deserving of codification.  He supported the Commission’s work on responsibilities of international organizations and on the continuity of nationality.  He had serious reservations on the remaining topics to be taken up, particularly the issue of expulsion of foreigners since the question was too vague, lacked definition and was unnecessary.

BEATRICE EUGENE (Haiti), reviewing the issues the Commission had taken up during its session, said work on the subject of State responsibility signified a pillar of international law.  Other extraordinary achievements in the Commission’s work included the articulation of articles on State responsibility for unlawful acts and those on reservations to treaties.

She said the Commission had made a good distinction between breaches of peremptory norms and other norms.  Articles 40 and 41 regarding breaches of obligations had established new legal obligations of States toward international norms.  Also, the legal aspects of countermeasures had been well set out to clarify legal relations between States’ responsibilities and unlawful actions.  The articles provided the assurance that countermeasures were used only in proportion to a wrongful act and could be invoked only if the originating State did not carry out its responsibility.  However, article 54 measures taken by States other than the injured state was too vague and did not give enough consideration to the settlement of conflicts.  Overall, the articles on State responsibility should be appended to a resolution by which the Assembly took note of them.  A high level meeting should be convoked at a later time to adopt the articles as a convention.

The articles on preventing transboundary harm made important legal strides in the area of protecting the environment, she said.  However, a structure should be included for deterring actions that resulted in transboundary harm.  Risk reduction was an important component in the articles, as was the assigning of responsibility to the originating State.

UMBERTO LEANZA (Italy) said article 9 on continuous nationality had a customary character, and it was reasonable to envisage certain exceptions to that classical rule, taking into account the cases that individuals did not have a chance to obtain diplomatic protection from any State. 

He said the position taken by the Special Rapporteur on the exhaustion of local remedies (article 10) was not well founded.  The Commission took up the question for the first time this year.

On the question of Unilateral acts of States, he shared the concerns expressed over the absence of adequate analysis of State practice in studies of categorization of those acts.

He said the Special Rapporteur had rightfully referred to the Vienna Conventions on the Law of Treaties in considering interpretation of unilateral acts.  He had referred in particular to article 31 of the 1969 Vienna Convention. He shared the general view that only genuine State practice would give the Commission a sound basis for its work on the topic.

On the Commission's other decisions, he said it should continue to give priority to its work on international responsibility, with particular reference to international organizations.

He underscored the importance of the Commission's cooperation with other international organizations that contributed to the consolidation of international law and its progressive development and also often promoted important international agreements.

                                    * *** *