Fifty-seventh General Assembly

Sixth Committee

22^nd Meeting (AM)

ELECTRONIC COMMUNICATION, RESERVATIONS TO TREATY PROVISIONS

AMONG ISSUES REVIEWED IN ASSEMBLY’S LEGAL COMMITTEE

Debate Continues on Report of International Law Commission

Electronic communication and withdrawal of impermissible reservations were the major issues on which the International Law Commission (ILC) would particularly welcome comments, the Commission's Chairman told the Sixth Committee (Legal) this morning as he introduced the Commission's report on reservations to treaties. 

Also this morning, the Committee concluded its debate on the chapters in the ILC report concerning diplomatic protection, and heard the introduction of three draft resolutions.

The Chairman of the Commission, Robert Rosenstock, referred to the 11 draft guidelines adopted and sent to the Commission’s drafting committee last year.  They dealt with the formulation and communication of reservations and interpretative declarations, including commentaries with examples and clarifications.

Speaking on the question of electronic communication of reservations, Sweden’s representative, on behalf of the Nordic countries, suggested to the Committee that the one-year time limit for objections should start at the date of the e-mail or fax and not at the later confirmation in writing.  There was no reason to set the starting point of the time earlier than current practice, which was the date of the written notification by the depository. 

Hungary’s representative, however, said any attempt to modify a presumed understanding between the Contracting Parties to a given international multilateral treaty should be made in the same legal manner to produce the same legal effect. Therefore, it should be done in writing and in the clearest possible way to avoid any future dispute regarding the legal obligations.

Also speaking on reservations were the representatives of Austria and France.

On the question of diplomatic protection, speakers were the representatives of Cyprus, Poland, Republic of Korea, France, Spain, Switzerland and Guatemala.

A draft resolution introduced by the representative of Egypt concerns the report of the Special Committee on the United Nations Charter and on the strengthening the Organization's role.  It would have the General Assembly decide that the Special Committee meet from 7 to 17 April 2003, on a priority basis to consider, among others, the question of assistance to third States affected by the application of sanctions under Chapter 7 of the United Nations Charter.

New Zealand's representative introduced a draft on the scope of legal protection under the Convention on the Safety of United Nations and Associated Personnel.  By its terms, the Assembly would recommend that key provisions of the Convention be included in agreements between the United Nations and countries.

The Chairman of the Sixth Committee, Arpad Prandler (Hungary), introduced a draft on the Convention on Jurisdictional Immunities of States and their property.  It would have the Assembly decide that the Ad Hoc Committee on the subject would meet from 24 to 28 February 2003, for a final attempt to elaborate an instrument on the matter.

The Committee will meet again at 10 a.m. tomorrow, 1 November, to continue its debate on the ILC's report.

Background

The Sixth Committee (Legal) met this morning to continue its two-week debate on the report of the International Law Commission on the work of the Commission’s fifty-fourth session (document A/57/10/Corr.1) which was held in Geneva in two parts, from 29 April to 7 June and then from 22 July to 16 August.  The Sixth Committee was expected to conclude its consideration of the report's introductory parts and of the chapters on "diplomatic protection".  It would then go on to discuss reservations to treaties.  (For more details of the report, see Press Release GA/L/3220 of 28 October.)  The Committee was also to hear the introduction of a number of draft resolutions.

On the subject of reservations, the International Law Commission had adopted 11 draft guidelines on formulation and communication of reservations and interpretative declarations during its fifty-fourth session.  It had also considered the Special Rapporteur’s seventh report relating to the formulation, modification and withdrawal of reservations and interpretative declarations, and had referred 15 draft guidelines to its drafting committee.

The text of the draft guidelines includes the procedure, form and notification of reservations.  There are also provisions on the formulation of a reservation at the international level and the procedure for communicating reservations.

The Special Rapporteur, in his report, drew attention to two new developments involving reservations to human rights treaties.  The first was a report prepared by the Secretariat in 2001 at the request of the Committee on the Elimination of Discrimination against Women, specifically a section entitled “Practices of human rights treaty bodies”.  The second development was that, despite the continuing opposition of the Commission on Human Rights, the

Sub-Commission on the Promotion and Protection of Human Rights had renewed its earlier decision to have a working paper on reservations to human rights treaties prepared.

The Special Rapporteur’s set of draft guidelines, contained in his seventh report, was designed to give States practical guidance on procedures to be followed in the event of withdrawal or modification of reservations in the 1969 and 1986 Vienna Conventions and other instruments.

According to the Commission’s report, the Special Rapporteur, at the end of the debate, noted that the draft guidelines would be extremely useful to the international community, as their purpose was to codify technical rules that responded to a real need.  The Special Rapporteur reiterated that the Guide to Practice would not be a set of binding rules, but rather, a “code of recommended practices”.

Draft Resolutions

By 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.6/57/L.19), the General Assembly would decide that the Special Committee would hold its next session from 7 to 17 April 2003.  It would ask the Special Committee, at that session, to continue considering proposals for the maintenance of peace and security and also, on a priority basis, the question of implementing the provisions of the Charter related to assisting third States affected by the application of sanctions.  Further, the Committee would be requested to keep the question of the peaceful settlement of disputes on its agenda and to continue considering proposals concerning the Trusteeship Council.  Finally, it would be asked to consider the improvement of its own working methods as a priority.

Also before the Committee is a draft on the scope of legal protection under the Convention on the Safety of United Nations and Associated Personnel (document A/C.6/57/L.20).  By it, the Assembly would call upon States to become parties to the relevant international instruments, particularly the Convention.  It would recommend that key provisions of the Convention be included in existing status-of-forces, status-of-mission and country agreements between the United Nations and countries.

A third draft, on the Convention on jurisdictional immunities of States and their property (document A/C.6/57/L.21), was also expected to be introduced this morning.  By the text, the General Assembly would decide that the Ad Hoc Committee on the topic would be reconvened from 24 to 28 February 2003.  The Committee would make a final attempt to consolidate areas of agreement and to resolve outstanding issues, with a view to elaborating a generally acceptable instrument based on the draft articles on jurisdictional immunities of States and their property.  The International Law Commission adopted the draft articles at its forty-third session in 1991.

Introduction of Drafts

The representative of Egypt introduced the draft on the Charter (document A/C.6/57/L.19).

The representative of New Zealand introduced the draft on the safety Convention (document A/C.6/57/L.20).  She said the Netherlands had become a

co-sponsor.

The Committee Chairman introduced the draft on jurisdictional immunities (document A/C.6/57/L.21).

Statements

A.J.JACOVIDES (Cyprus), speaking on “Reservations to treaties”, said communication of a reservation could be made by electronic mail or facsimile and should be confirmed by writing.  The core issue of “diplomatic protection” was the nationality principle, namely, the link between a State and its nationals abroad.  It was best, therefore, that the draft articles on it be confined to issues relating to the nationality of claims and to the exhaustion of local remedies.

On the topic of “Unilateral acts of States”, he said there were specific types of such acts, such as promise, waiver, recognition and protest, that could be concentrated on.  He shared the Special Rapporteur’s view that unilateral acts existed and could constitute a source of obligations as indicated also by the jurisprudence of the International Court of Justice.

Cyprus still considered that an effective dispute settlement mechanism was a conditio sine qua non of a well-functioning legal regime of State responsibility, and that that extended to the regime of responsibility of international organizations on which the Commission planned to undertake a study.  He said the study should be limited to issues relating to the responsibility for internationally wrongful acts under general international law, and also to intergovernmental organizations at the initial stage.

ZDZISLAW GALICKI (Poland) said the scope of the topic of fragmentation of international law, chosen for study by the Commission, should not be limited only to its negative effects.  On the topic of “diplomatic protection”, his delegation had reservations about its extension to cover crew of ships and aircraft, and passengers holding the nationality of a third State.  They should not, as a rule, be covered by diplomatic protection.  There were provisions to protect them in instruments such as the United Nations Convention on the Law of the Sea and air law.

He said Poland was also against the exercise of diplomatic protection by the State of nationality of shareholders.  The position adopted by the International Court of Justice in the Barcelona Traction Case did not give a right for such extensive interpretation.  It dealt exclusively with the possibility of the exercise of diplomatic protection on behalf of a company by the State of its incorporation, or of the location of registered office.  Additional criteria suggested by some, such as nationality of shareholders, was also not acceptable to Poland.

SHIN KAK-SOO (Republic of Korea) said he shared the Commission’s view that the International Court of Justice had not intended to expound the genuine link requirement as a general rule applicable to all States in its Opinion on the Nottebohm case.  The Court had supported that requirement largely by reference to practice concerning dual nationality.  He also shared the Commission’s view that millions who had drifted away from their State of nationality because of economic globalization and migration would be deprived of diplomatic protection if the genuine link requirement was strictly applied.

He said there was no need for a provision concerning the "Calvo clause" to be included in article 16 dealing with the exception to the rule on exhaustion of local remedies.  Furthermore, the "Calvo clause" had increasingly been losing its practical usefulness in the globalized economy where priority was being given to attracting foreign investment.  Questions relating to protection of crew of ships who held the nationality of a third State could best be dealt with within the framework of the United Nations Convention on the Law of the Sea, rather than as a general rule of diplomatic protection.  Extension of diplomatic protection on the basis of the number of shareholders or the financial values of the shares involved would be discriminatory against small shareholders.

RONNY ABRAHAM (France) said the work of the International Law Commission always provided fruitful results.  He said diplomatic protection for refugees and stateless persons was not sanctioned by State practice, and even directly contradicted certain provisions of the annex to the 1951 Geneva Convention on the Status of Refugees.

With regard to article 6 on multiple nationality and claim against a State of nationality, he said a State could not exercise diplomatic protection on behalf of one of its own nationals against a State of which that person was also a national.  In practice, that had commanded a certain amount of support, he said. However, article 6 associated that rule with an exception when the “predominant” nationality corresponded to that of the first State.  He said the wording of article 14 on local remedies must be improved.

The Commission must confine its work to codifying existing practice and customary law.

DON JUAN ANTONIO YANEZ-BARNUEVO (Spain) said the International Law Commission should restrict itself to dealing with matters based on established practice concerning diplomatic protection, such as nationality and prior exhaustion of local remedies.  It should not let itself be distracted by side issues.

Reviewing the seven articles adopted, he said there should be a full definition of diplomatic protection in the first article.  The concept should be distinguished from other situations that were similar but not the same, such as the general protection that a State could offer its citizens abroad.  The distinction should be clarified either in the text or in the commentary.  Also, the territorial link must be defined more clearly, along with the exceptions and predominant nationality.  And if the effective links provision were taken out, as the Commission had proposed, what would replace it?  He said he supported the draft article regarding stateless persons but it must be treated with caution.

The Special Rapporteur’s approach to the exhaustion of local remedies was innovative, he continued.  It was unfortunate that articles dealing with them had not been sent to the Drafting Committee.  The provision on exceptions should be formulated along the lines of the third suggestion presented in the report, or the exception should be based only in situations when there was no chance of getting justice through local remedies.  The work on the provisions relating to the Calvo clause associated with waivers had been exhaustive and productive.  The language now made it clear that diplomatic protection was the State’s right and not the individual’s.

He said the Law of the Sea Convention covered the issue of crews, and other instruments addressed the situation of flight crews.  In a globalized world, in which business moved often, it was difficult to speak of the State of a business because it could change frequently and it could be multiple.

NICOLAS MICHEL (Switzerland) said the articles on diplomatic protection made clear the discretionary character of the principle, and made a clear distinction between the State and the individual in relation to it.  He agreed with the article on stateless persons and refugees but did not agree with the commentary on article 10 related to it -– with the effect that the previous article opened up the danger of States refusing refugees for fear of having pressure brought on them to intervene.  There was no danger opened up.  States were not free to accept or reject refugees.  All international instruments and laws made it clear that States were obliged to accept them.  How would refugees bring pressure to bear?  The principle of “predominant link” established the relation between the State and the individual who had been injured and the main link was the State of the individual’s nationality.

The Commission had dwelt at length on the exhaustion of local remedies, he continued.  The relationship between diplomatic protection and other means of resource should be determined.  For example, an international claim could be made by a State on behalf of an individual.  However, diplomatic protection was different and implied other means than the international claim.  The rule of exhausting all local remedies was relevant but could be excessive in some situations.  Nevertheless, exceptions should apply only when it was impossible to obtain reasonable remedy.

Further, he said, the intent to waive must be clearly distinct from the respondent State’s conduct.  The issue of voluntary and territorial link should be studied in greater detail in context of the discussion on exceptions to the rule of exhausting local remedies.  The bases for exceptions should include undue delay and deterred access.  The criteria set out in the report were relevant.

He said the Calvo clause relating to the waiver of diplomatic protection was difficult to reconcile with today’s concept of diplomatic protection, which was a right belonging to a State and not to an individual.  How could one waive a right one didn’t have?

ROBERTO LAVALLE-VALDES (Guatemala) doubted the need for the inclusion of exhaustion of remedies in the draft articles.  Instead he suggested the amendment of article 10 of the text to allude to the existence of the problem.  He drew attention to a relationship between some of the provisions of the text on State responsibility adopted last year and those of diplomatic protection the Commission was engaged on.  He said there was a close relationship between the two topics.  The draft articles on “diplomatic protection” could be an extension of the work done on “State responsibility”.

He said he agreed with a statement made yesterday by the representative of Austria that consular and diplomatic protection could be granted to nationals of another State as was the case within the European Union countries.

International Law Commission Report:  Chapter on Reservations

ROBERT ROSENSTOCK, Chairman of the International Law Commission, introduced Chapter IV of the Commission's report relating to the topic of reservations to treaties.  He recalled that the Commission had adopted 11 draft guidelines on the formulation and communication of reservations and of interpretative declarations, accompanied by commentaries providing examples and clarifications.  The guidelines had been referred to the Draft Committee last year.

Further, he said, the Commission had considered the seventh report of the Special Rapporteur, Alain Pellet.  The report had dealt with the formulation, modification and withdrawal of reservations and of interpretative declarations in some detail.  The Commission referred the 15 draft guidelines dealing with those matters to the Drafting Committee.

Mr. Rosenstock went on to summarize the status of the 11 draft guidelines that had been adopted.  He said guideline 2.1.1 was "written form".  It dealt with the form of reservations, which must be in writing.  However, the question of whether a reservation could initially be formulated orally was left open.  Guideline 2.1.2 was "form of formal conformation".  It stated that the formal confirmation of reservations must be made in writing.

Guideline 2.1.3 was "formulation of a reservation at the international level".  It defined the persons and organs authorized to formulate a reservation.  Guideline 2.1.4 was "absence of consequences at the international level of the violation of internal rules regarding the formulation of reservations".  It dealt with the formulation of reservations in the internal legal system of States and international organizations through a procedure that did not necessarily follow the one required for expression of the State's consent to be bound by a treaty.  Guideline 2.1.5 on "communication of reservations" listed the recipients of reservations, including contracting States and organizations, as well as other States and organizations entitled to become parties to the treaty.  The communication should be in writing.

Guideline 2.1.6 was on the "procedure for communication of reservations".  It clarified aspects of the procedure to be followed and covered three different but closely linked aspects:  the author of the communication, the practical modalities and the effects.  It took account of modern means of communication such as facsimile or e-mail, stating that the communication should be confirmed by diplomatic note or depository notification.  In that case, the communication was considered as made on the date of the electronic notification.

He said guideline 2.1.8 was on the "procedure in case of manifestly (impermissible) reservations”.  It went beyond the Vienna Conventions with regard to the functions of depositories.  In the case of an impermissible reservation, the depository drew the author's attention to the impermissibility.  If the author maintained the reservation, the depository communicated the reservation to all concerned, indicating the nature of the legal problems raised.  The word “impermissible” in brackets indicated the Commission intended to revisit the term.

Guidelines 2.4.1, 2.4.2 and 2.4.7 dealt with the procedure for interpretative declarations.  The first was on "formulation of interpretative declarations".  It transposed and adapted use in relation to the formulations in guideline 2.1.3.  It stated it was not essential that they be in writing provided they emanated from a competent authority.  The second, on "formulation of an interpretative declaration at the internal level", transposed guideline 2.1.4 onto interpretative declarations, whether or not they were conditional.  Finally, the last of the three guidelines, on "formulation and communication of conditional interpretative declarations", dealt with the specific case of so-called conditional interpretative declarations and the procedure of their formulation and communication.  It was modelled on guidelines 2.1.1, 2.1.2 and 2.1.5.  The Commission reserved the option of reconsidering whether this guideline should be retained in the Guide to Practice. 

       He said the Commission would particularly welcome comments on two issues, namely the question of confirmation of a communication made electronically and also the possible withdrawal of reservations held to be impermissible by a body monitoring the implementation of a treaty.  Early and clean statements of States expressed either orally in the Committee or by way of written comments were most helpful to the Commission.

Statements

HANS WINKLER (Austria) said he agreed with the first two guidelines but questioned the meaning of the phrase “at the international level” in the third, on the formulation of a reservation.  Was the determination necessary?  The Vienna Convention on the Law of Treaties did not contain such an expression, it spoke only of formulating reservations.  The addition of the qualifier seemed inconsistent with the Vienna Convention.  There was no need to create a new concept unless there was some justification for it.

Was it intended, he asked, that the formulation of reservations “at the international level” should coincide with the conclusion of a treaty?  The guidelines seemed to suggest such an interpretation.  If the term “formulation of a reservation” was meant as immediately producing legal effects, it was debatable whether representatives to international conferences should be empowered to perform such an act, since their power consisted only of the right to transmit a reservation to the addressee, namely the depository.  Yet a reservation could be formulated only by the State organ competent to conclude the treaty.  The right to adopt or sign a treaty still needing ratification was not sufficient for the purpose.

Continuing, he said the guideline on the procedure in the case of manifestly impermissible reservations was of great significance since it touched on the question of the legal status of illicit reservations.  The text distinguished between categories of illegality:  the absolute illegality, where the reservation was manifestly illegal; and relative illegality, where illegality had still to be established.  In the first case, the depository should be entitled to react whereas in the latter case, only the State parties had the right to act.  The wording should reflect that.

He said he supported the concept of a permanent review of reservations with the aim of facilitating their withdrawal at any time.  He favoured the possibility of partial withdrawal despite the absence of such a rule in the Vienna Convention.       

CARL HENRIK EHRENKRONA (Sweden), speaking for the five Nordic countries, said the issue of impermissible reservations to treaties was of particular interest to the group.  In light of the delicacy of the matter, it should not be referred to as a working group, but should be treated by the Special Rapporteur in the same detailed and constructive manner as had been the other topics in his reports.  He was urged to address the issue with the highest priority and the same ambitious approach as in earlier reports.

In addition, he said, he was concerned with the emerging trend to submit reservations making general references to domestic law and without further describing the content of the law.  The Commission should consider the issue closely, especially whether a reservation must be autonomous in the sense that it should provide sufficient information and thereby enable other States to consider its legal consequences without having to consult the domestic law.  It was important to make objections to reservations, particularly when those were incompatible with the object and purpose of a treaty.  Parties shared a common interest to safeguard against diluting the common norms.  Also, the ultimate responsibility for the integrity of a treaty rested with States parties.  No action by the depository could alter that responsibility.

He said treaty bodies to the human rights conventions performed highly important work in protecting the integrity of the respective conventions.  Reservations to treaties must never challenge the object and purpose of the treaty.  Although responsibility for treaty integrity ultimately rested with States parties, it was useful for treaty bodies to engage in the matter of reservations.  Their interest was welcome.

He said the guideline relating to withdrawal of impermissible reservations should be discussed in a more general context than previously.  Any development in that field of treaty law should be considered by States parties, and yet should take into account the input of other actors.  Nothing prevented depositories or treaty bodies from sharing their views with the reserving State, but at present neither depositories nor treaty bodies had the task of ultimately determining the permissibility of reservations.  According to the Vienna Convention regime, that was a matter for States parties.

With regard to the guideline on confirming electronic communications in writing, he suggested that the one-year time limit for objections should start at the date of the e-mail or fax.  There was no reason to set the starting-point of the time earlier than current practice, which was the date of the written notification by the depository.

Speaking a second time, Mr. ABRAHAM (France) said that 11 depository of treaties had primarily an administrative function, which was correct.  The draft provisions had suggested that the depository could have other powers involving, to some extent, assessing the validity of reservations.  He said the depository’s functions must be confined to registering reservations and communicating them.  He also spoke of the importance of establishing a mechanism for monitoring the validity of reservations.

On the topic of International liability, he said he supported the decision of the working group to restrict the scope of its work.  The position of States on the question of liability should be taken into account.

GYORGY SZENASI (Hungary) called for an in-depth consideration of instances where it was impossible to exhaust national legal remedies, as required by international law, as a prerequisite for triggering some international proceedings.  He said he endorsed the general approach in the report, but the important principle of generally accepted international law should be preserved.  The right to invoke diplomatic protection was a right given to a State and not that of the natural or legal person who may consider itself injured.  For the sake of efficiency and clarity, the question of whether the local remedies had really been exhausted or whether such action had undoubtedly been denied by the State should be defined.  Other areas to be further clarified included issues of nationality or citizenship, the exercise of diplomatic protection rules in respect of non-nationals, multiple nationality, stateless persons and refugees.

He said that on the important issue of electronic communication, according to the existing requirement of international public law an international treaty was to be made in written form.  A reservation, by definition, was intended to modify the contents of the international legal obligation already entered into.  Any attempt to modify a presumed understanding between the Contracting Parties to a given international multilateral treaty should be made in the same legal manner to produce the same legal effect as the originally accepted one, and carrying the same legal obligations.  Therefore, it should be done in writing and in the clearest possible way to avoid any future dispute regarding the legal obligations.  Further, reservations should only be made, and consequently accepted by the depository, by persons duly and legally authorized to undertake the responsibility.

Another important issue was the role of the depository, as defined in the codified rules and as it had developed in practice.  A clear and convincing definition must be devised on what kind of reservation was to be considered “manifestly impermissible”.  The role of depository should not be limited to that of a “mailbox”.  At the same time, the depository should not be given too much power to assess whether a reservation was inadmissible. That decision should be a matter exclusively left to member States to a treaty.  A similar procedure should be followed for interpretative declarations.

* *** *