Fifty-seventh General Assembly

Sixth Committee

23rd Meeting (AM)

LAW COMMISSION CHAIRMAN SEEKS RESPONSES FROM STATES TO SURVEY

ON TOPIC OF ‘PRACTICES RELATED TO UNILATERAL ACTS’

Legal Committee Reviews More Issues from Commission’s 2002 Report

The Chairman of the International Law Commission this morning appealed to States to respond to the Commission’s questionnaire on practices related to unilateral acts, as the Sixth Committee (Legal) began its consideration of that topic, among other issues embodied in the Commission’s report on its 2002 session.

Robert Rosenstock, the Commission Chairman, was introducing the remaining chapters from the report on unilateral acts of states; international liability; responsibility of international organizations; fragmentation of international law; and other decisions, including new topics.  Particular attention was also given today to the report's third chapter, on "reservations to treaties".

On the subject of unilateral acts, Mr. Rosenstock said any information States provided would be useful for the Commission’s work on the topic.  The appeal was first made in a questionnaire of 31 August 2001.  Also, on behalf of the Commission members, he called for a review of a General Assembly resolution that had cut their honoraria to a symbolic $1.  He said an appeal had been made to the appropriate authorities.

Speaking on the topic of international liability, the representative of Mexico representative called for the Commission to work in line with the principle of optimizing the number of avenues for victims to find compensation for harm.  National legislation should accommodate the possibilities of settling issues either locally, nationally or internationally.

Speaking for the Nordic countries, Finland’s representative said the fragmentation of international law was of particular interest.  It marked a departure from the Commission’s traditional approach.  The concept referred to developments involved in expansion of legal regulation to new areas.  The Commission was well-placed to study it.

Also speaking this morning were the representatives of Italy, Iran, Netherlands, Guatemala, New Zealand, United Kingdom, Romania, United States, Russian Federation and Australia.  

The Committee will meet again at 10:00 a.m. on Monday, 4 November, when it will continue its consideration of the ILC report.

Background

The Sixth Committee (Legal) met this morning to continue its debate of the report of the report of the International Law Commission (ILC) on the work of its fifty-fourth session (document A/57/10 and Corr.1), giving particular attention to the report's third chapter on "reservations to treaties".

The Committee was also expected to take up the remaining chapters on unilateral acts of States; international liability; responsibility of international organizations; fragmentation of international law; and other decisions, including new topics. 

(For more details on the Commission's report, see Press Release GA/L/3220 of 28 October.)

Statements

UMBERTO LEANZA (Italy), speaking on the "functions of depositaries of treaties", said the depositary could be called upon to exercise an important role of verifying reservations.  On the question of inadmissible reservations, he said certain innovative steps could be taken to bring to the attention of the depositary what was clearly inadmissible.  The depositary could prefer to engage in dialogue with the party formulating reservations.

He said the existing law of treaties did not exclude the possibility that the depositary could be called upon to exercise functions that also comprised evaluation of the substance of the reservations.  In case of disagreements, the question should always be brought to the attention of the contracting parties or the relevant organs of international organizations.  It was inopportune to restrict that function of the depositary to cases of clear inadmissibility because of a formal prohibition or because the treaty expressly enumerated only the admissible reservations.

[Under the draft articles, the functions of the depositary include examining whether a reservation to a treaty formulated by a State or an international organization was in due and proper form.  In the event of any difference appearing between a State or an international organization and the depositary as to the performance of the latter’s functions, the depositary shall bring the question to the attention of:  a) the signatory States and organizations and the contracting States and organizations; or b) where appropriate, the competent organ of the international organization concerned.] 

ALIREZA KAZEMI (Iran) said the guiding principles the Commission had adopted should be assessed in light of their compatibility with the Vienna regime.  They were useful and practical recommendations that States could consider in formulating, modifying and withdrawing their reservations to treaties.  Two points in particular should be considered when assessing their consistency with the Vienna conventions and with State practice.

He said guideline 2.1.8 on the procedure in the event of impermissibility of reservations required further reflection.  By the Vienna regime, the question of testing the compatibility of a reservation with a specific treaty rested with the States parties to the treaties.  The right could not be relegated to the depositary, which could share its findings with other contracting parties.  That would be interference in matters that should have been left for the interaction of the States parties only.  Such interference would provoke other States to react and that would not be helpful in resolving the problem.  Such an action was not commensurate with the depositary’s duties.  The guideline’s second sentence should be deleted.

On the guidelines dealing with the question of findings of monitoring bodies, he said the Vienna regime stipulated general norms governing the reservations.  The guideline should follow the applicable regime.  However, mindful of recent developments concerning the new role relegated to some exceptional monitoring bodies on assessing reservations to a given treaty, it should be noted that such a situation was an exception.  It should not be covered by the guidelines, which had to harmonize with the legal regime set out in the Vienna conventions.

JOHAN G.LAMMERS (Netherlands) said the practice of the United Nations Office for Legal Affairs would be relevant in discussions on the issue of the competence to present reservations.  He said the text on communication of reservations (draft guideline 2.1.5) was incomplete, since it omitted mentioning who was the addressee of that obligation to communicate the reservation.  A redraft of the text referring to the depositary’s role in that respect would be useful.  He welcomed the useful clarification of the role of the depositary in case a dubious reservation was presented.  Clearly it was not for the depositary to judge reservations that were contrary to article 19 (c) of the Vienna Convention, he said.  To alert the author of the reservation to its dubious nature would seem to be quite appropriate, he added.

On the issue of formulation of reservations, he said the Netherlands questioned whether it was useful or necessary to focus on the authority of the persons involved.  What mattered was that the interpretative declaration was made by a State, as part of its treaty-making power.  He reiterated the view of the Netherlands' that the reference to “conditional interpretative declaration” in draft article 2.4.2 should be deleted.  The phrase was not a legal category in its own right, and treating it as a separate category would not be helpful but would create confusion. 

ROBERTO LAVALLE-VALDÉS (Guatemala) said the guidelines could be improved by making a distinction between unconditional interpretative declarations and simple interpretative declarations.  As adopted, there was a confusion that could have legal effects.  It should be made clear that the “unconditional” could be invoked against a State as formulated by another State.  The two types of interpretative declarations must be clearly distinguished and it should be made clear whether the guidelines applied to both types of interpretative declarations, or only one.  The guidelines now made no distinction.

From the point of view of needing to finalize the guidelines, he made specific and detailed comments on each.  For example, he said, the two guidelines on interpretative declarations, 1.2 and 1.2.1, should be combined into 1.2 with the simple title of “interpretative declarations”.  It should make clear that the conditional interpretative declaration was a unilateral statement made when a State or international organization formally adopted a treaty while an unconditional interpretative declaration was understood to be for the purpose of clarifying the meaning or scope.

REBECCA JONASSEN (New Zealand) said she shared the Commission’s view that the scope of the topic “Responsibility of international organizations” be limited to issues relating to responsibility for internationally wrongful acts under general international law.  The existence of special rules in relation to particular international organizations or particular sorts of international organizations would be helpful in establishing more general rules of international law.

She said a series of studies on “fragmentation of international law” would provide a good vehicle for promoting a general awareness of international law.  An examination of the specific topics identified by the Commission to be initial subjects of study would be useful for both international courts and practitioners of international law, in dealing with those consequences of the diversification of international law.  Her delegation hoped that the study would deal substantially with the practical problems associated with the fragmentation of international law, and provide guidelines for those involved in practising international law.

On the topic of “reservations”, New Zealand had some concerns that a conditional interpretative declaration might, in its application, create a similar legal effect to a reservation.  She hoped that reservations would not be entered or maintained any more than was absolutely necessary.   

      MICHAEL WOOD (United Kingdom), speaking on “reservations to treaties”, said the conclusions of a monitoring body as to the status or consequences of a particular reservation were not “determinative”, unless the treaty provided otherwise.  He did not think that there was a distinct category of “conditional interpretative declarations” separate from reservations, and he welcomed the Special Rapporteur’s assertion that that view was right.  There were clear dangers in suggesting that there could be such a category.

The United Kingdom welcomed the Commission’s intention to complete work on “reservations” during its present term of office.  The United Kingdom looked for something that would be of practical help to States in the field of “reservations”.  The Commission might consider reviewing some of its commentaries to sharpen and make them briefer where possible.

He said the Commission’s approach to the topic “unilateral Acts” was misconceived.  The “international liability” topic was at a very preliminary stage, and care would be needed not to seek to deal with it in a single study with very different material, he said.  The study on “responsibility of international organizations” should be confined to responsibility under general international law, and to intergovernmental organizations.  On the Commission’s work on “diplomatic protection”, the United Kingdom continued to have doubts about draft article 7 on protection of such persons.  The United Kingdom thought it would only be exceptionally, and in appropriate cases, that representations might be made on behalf of such persons.

BOGDAN AURESCU (Romania) said he welcomed the decision with regard to “diplomatic protection” that existence of a genuine or effective link between the State and its national was not required, and also the decision to set a higher threshold concerning refugees and stateless persons by requiring lawful and habitual residence.  A number of other matters should be included in the field.

On functional protection of their officials by international organizations, he said the same logic should apply as had been exercised when the Commission had agreed to exclude protection of diplomatic and consular officials from the scope of the topic.  There was no need to expand the scope of the draft articles to crew members and passengers of ships since that issue had a different legal regime from diplomatic protection.  The situation of a State or an international organization administering a territory should be further discussed.  The shareholder question should be dealt with in context of legal persons and the Calvo clause (on waiver to diplomatic immunity) was irrelevant since exercise of diplomatic protection was a State discretionary right and not individual.

Turning to “reservations to treaties”, he said the draft guidelines were acceptable and would, hopefully, be adopted during the Commission’s next session.  Commenting on individual provisions, he said the regime established by the Vienna Convention left it up to the States parties of a treaty to decide on the permissibility of reservations.  It was questionable whether there was a legal basis in international law for any obligation of States to act as a consequence of the findings of the monitoring bodies.  Another question should also be considered.  Was there a relationship between the two situations in which a monitoring body found a reservation impermissible and the depositary’s opinion that a reservation was manifestly impermissible?

ERIC ROSAND (United States) said his country continued to believe that reservations to treaties received by depositories should be circulated to the parties for whatever action they deemed appropriate.  Speaking on the topic “reservations”, he said that if a party deemed a reservation to be incompatible with the object and purpose of a treaty, it might take the action specified in the Vienna Convention on the Law of Treaties.  The United States did not see a need for allowing reservations to be made by electronic mail or facsimile.  In its depository capacity, the United States had never received a reservation in either medium.  On the Commission’s future work, he said the United States looked forward to reviewing the first of the studies that would be undertaken on the topic.

On the topic of “diplomatic protection”, the United States was in the process of reviewing the seven draft articles and commentaries provisionally adopted by the Commission.  It was concerned that draft article 4, already adopted by the Commission, was not in accord with customary international rule on continuous nationality and should be revised accordingly.

He said the United States was somewhat sceptical of the utility of work being pursued on the topic of “unilateral acts of States”.  The general approach of the United States on the topic of international liability was that international regulation in that area ought to proceed in careful negotiations concerned with particular issues, such as oil pollution, hazardous wastes, or with particular regions like environmental damage in Antarctica.  That work was proceeding in numerous negotiations in which issues such as environmental impact assessment, prevention and notification were being given detailed treatment, he said.  The United States did not perceive a desire among States to develop a global liability regime.

On the topic of “shared natural resources”, he said the United States was sceptical about a broad approach to work on it.  While it could support the Commission’s work on the issue, the United States was concerned that other aspects of transboundary resources were not ripe for study by the Commission. Transboundary watercourses was a topic that presented specific issues that had often been encountered in practice.  An attempt to extrapolate customary international law from that divergent practice would not be productive exercise, he said.  

ROMAN A. KOLODKIN (Russian Federation), speaking on “diplomatic protection”, said protection should not be extended to crews of ships.  At the same time, he said the prerogative of a State of nationality to provide such protection for crews of ships flying a flag of convenience should not be excluded.  He also said it would be highly inappropriate for international organizations to extend diplomatic protection to their employees or to individuals in territories under their supervision.  Diplomatic protection by international organizations was dealt with under separate instruments.  He said the Commission should give priority to the question of diplomatic protection.

On the topic of “reservations”, he said the Commission should be careful about drawing guidelines on functions of the depositary and the monitoring group on reservations to treaties.  He said neither the depositary nor the monitoring body should make any judgement about reservations.

He wondered about the right of a State to make a retroactive withdrawal of reservations to treaties.  That could create problems for others.  On the question of communication of reservations, he said the depositary could not be sure of the authenticity of a reservation communicated by facsimile until it was confirmed by writing.  While he welcomed the advances of modern technology, the Commission should, however, make clear if it wished to deal with the issue in a guideline.

He said he welcomed formulation of practical guidelines for the question of reservations; the Russian Federation looked forward to the day the Commission would conclude work on admissibility, validity, and consequences of reservations.

The topic of unilateral acts of States, he said, was the most controversial of all the subjects being considered by the Commission.  The Commission must first analyze specific types of unilateral acts in its consideration of the topic.  It must also concentrate on intergovernmental organizations, in its study of the responsibility of international bodies.  The Commission should look at the issue of definition of those organizations.

KYM TAYLOR (Australia) noted that the Commission had sought Committee comments on two issues.  In response to the first, she said her country’s practice was to send the text of its reservations by facsimile or e-mail, with confirmation subsequently provided in hard copy.  She supported the current wording of paragraph 4 of draft guideline 2.1.6, “procedure for communication of reservations”.

With regard to “impermissible” or “inadmissible” reservations, she said the question concerned whether a State or international organization must take action in view of such a finding by totally or partially withdrawing the reservation.  That proposal would represent a new development in international law.  The Vienna Convention left that determination to States.  The Commission had expressed uncertainty about issues involved.  Would any or all treaty monitoring bodies have the power to decide on impermissibility?  Would the finding be binding on States?  Would States be required to act?  At the very least, the proposal should be excluded from the guidelines.

Finally, with regard to the function of the depositary in relation to manifestly “impermissible” reservations, she said that to allow the depositary to intervene represented a progressive development of international law.  The role of the depositary should align with the Vienna Conventions.  Accordingly, the depositary should be impartial and neutral in the exercise of its functions.  Its role should be limited to transmitting reservations to treaty parties.

New Chapters of ILC Report

ROBERT ROSENSTOCK, Chairman of the International Law Commission, introduced the remaining chapters of the Commission’s report.  They are chapter VI, Unilateral acts of States; chapter VII, International liability; chapter VIII, Responsibility of international organizations; chapter IX, Fragmentation of international law; and chapter X, Other decisions and conclusions of the Commission.

On unilateral acts of States, he said the Commission considered the fifth report of its Special Rapporteur on the topic as a whole, including the best means to proceed with its work.  Some Commission members reiterated that the topic lent itself to codification and progressive development by the Commission, and it was useful for States to know what risks they ran in formulating such acts.  Divergent views were expressed on the classification of unilateral acts, and on the approach that the Commission could take on the topic.

The point was made that the effects of definition of unilateral acts contained in draft article 1 should be extended not only to States and international organizations, but also to other entities, such as movements, peoples, territories and the International Committee of the Red Cross.  In that connection, he said attention was drawn to the need for analyzing the case of unilateral acts formulated by a political entity recognized by some Governments, but not by others, or which represented a State in the process of being created.  The point was also made that a definition of unilateral acts should not be adopted until a study, based on State practice, of the various types of unilateral acts had been conducted so as to determine whether there were common characteristics.

He drew attention to Chapter III of the report where the Commission once again encouraged States to reply to the questionnaire of 31 August 2001 concerning State practice on unilateral acts.  He said any information on the matter provided by States would be useful for the Commission’s work on the topic.

Turning to chapter VII of the Commission’s report, he recalled that in 1978 it included in its programme of work the topic “International liability for injurious consequences arising out of acts not prohibited by international law”.  In 1997, the Commission decided to continue the work on the topic by dealing first with the issue of prevention under the subtitle “prevention of transboundary damage from hazardous activities".  The Commission was of the view that the liability aspects of the topic could be dealt with at a later stage.

Accordingly, it continued its work on the prevention aspects and in 2001 adopted the final text of a draft preamble and a set of 19 draft articles on the prevention of transboundary harm from hazardous activities, thus concluding its work on the first part of the topic.

At its fifty-fourth session this year, in accordance with General Assembly resolution 56/82, the Commission resumed its consideration of the liability aspects of the topic under the subtitle “International liability in case of loss from transboundary harm arising out of hazardous activities”.  It established a working group whose report it had adopted.  Furthermore, it appointed P.S. Rao as Special Rapporteur for the topic.  In its report, the working group noted that the Commission had completed its work on State responsibility and clearly stated that failure by a State to perform duties of prevention in terms of the draft articles on prevention entailed State responsibility.

Nonetheless, it was also recognized that harm could occur despite faithful implementation of the duties of prevention -- for example, where the preventive measures were simply followed and proved inadequate, or where a particular risk that caused harm was not identified at the time and the appropriate preventive measures were not taken.  It was in those types of circumstances, that is, where there was no breach of an obligation, that international liability would arise and on which the Commission was urged to focus, he said.

On Chapter VIII dealing with “Responsibility of international organizations”, he said it was one of three new topics which the Commission had decided this year to include in its programme of work.  It had included the topic as a logical continuation of its work following the conclusion last year of the draft articles on the Responsibility of States for internationally wrongful acts.  The Commission appointed Giorgio Gaja as Special Rapporteur for the topic, and established a working group under his chairmanship to consider the preliminary issues.  The Commission adopted the report of the working group, which was limited to its study of intergovernmental organizations.  It also approved the working group’s recommendation that the Secretariat approach international organizations to collect relevant materials, especially on questions of attribution and of responsibility of Member States for conduct attributable to an international organization.

The topic “Fragmentation of international law:  difficulties from the diversification and expansion of international law”, contained in Chapter IX of the Commission’s report, was one of the new subjects undertaken by the Commission.  A study group was established under the chairmanship of Bruno Simma, and its report was adopted.  The Commission also approved recommendations that a series of studies be undertaken on specific aspects of the topic and that they be subsequently presented to the Commission for consideration and appropriate action.  The purpose of the studies was to assist international judges and practitioners in coping with the consequences of the diversification of international law.  The first study would focus on the topic “The function and scope of the lex specialis rule and the question of ‘self-contained regimes’”.  It was expected that the study would be submitted to the Commission at its 2003 session.

With regard to the final chapter, chapter X on “Other decisions and conclusions of the Commission”, he said the Commission established, as was its custom, a work programme for the ensuing four years of its mandate, setting out goals to be achieved with respect to each topic during the period.  The Commission also considered various proposals on issues relating to procedural aspects of its work, to improve them and make them more efficient.  It also continued to make every effort aimed towards the most cost-effective and economical way to conduct its work.

He drew attention to the Commission’s documentation, stressing the importance of maintaining the present practice of summary records.  He also stressed the need to maintain the exemption of limitations on the length of the Commission’s documentation.  The Commission had already indicated in its previous reports that codification and progressive development of international law involved extensive legal research and analysis.  That requirement was an integral part of the mandated method of its work, he said, pointing out articles 20 and 24 of the Commission’s Statute.

He also drew attention to the question of honoraria that was traditionally paid to the Commission members.  He said that after the Commission members were elected last year, the General Assembly adopted resolution A/56/272 which practically abolished the honoraria payable to them and to members of certain other bodies.  He said the resolution was adopted without any consultation with the Commission and with no account being taken of the consequences it would have on members of the Commission and in particular on the work of the Special Rapporteurs.

The Special Rapporteurs from developing countries were especially affected. In addition to research, there was a great deal of typing and copying of legal material, as well as correspondence, that were involved and all of which had costs.  The small honoraria for the Commission members and the Special Rapporteurs were helpful for those purposes so that they did not have to pay personally for matters which were done strictly for the work of the Commission.

Members of the Commission had decided that they would not collect the current symbolic honoraria of one dollar, since they were concerned about the administrative costs involved to the Organization in their payment.  The Commission also decided to bring its concerns to the attention of Member States in the hope that they would carefully reconsider the resolution.  On the recommendation of the Commission, he said he had also sent a letter expressing their concerns to the appropriate authorities.    

ALFONSO ASCENCIO HERRERA (Mexico) said more diligent work was needed in the area of environmental liability.  Victims should not have to bear any part of compensation for damages, unless of course there was negligence involved on their part.  As to the role of the State, and its share in the liability, the State must take all liability if it caused the harm.  The State may also be called upon to take on subsidiary responsibility in the event the individual could not meet obligations to make reparations or compensation.  Super-hazardous activities should include situations of hazardous activities which caused transboundary harm; “significant harm” was the trigger for the regime on allocation of loss in line with the principle that the “polluter must pay”.  The bottom line was that ecological boundaries did not stay within national boundaries.

He said the concept of operator, or operators, must be broad enough to take in all the variations of possibilities.  As for settling compensation, the forum in which satisfaction was sought should be decided by the injured party.  National legislation should accommodate the needs to settle issues either locally, nationally or internationally.  That legislation should include agreements to respect the rulings of other national courts.  The principle that must guide the Commission’s work in the area was to optimize the number of avenues for victims to find compensation.                            

On the subject of reservations to treaties, he said the Subcommission on the promotion and protection of human rights was already working on questions concerning monitoring of human rights instruments.  Care must be taken to make sure work was not duplicated and that bodies of the United Nations system did not contradict each other.

ERKKI KOURULA (Finland), speaking for the five Nordic countries, said there was great practical interest in the question of the responsibility of international organizations, which had become increasingly autonomous actors on the international scene.  While the topic shared common ground with the draft articles on State responsibility a comprehensive analysis was justified since there were numerous issues specific to international organization responsibility, including the questions concerning attribution.

He said the fragmentation of international law was of particular interest.  It marked a departure from the Commission’s traditional approach of codifying and progressively developing law.  The concept referred to developments involved in expansion of legal regulation to new areas.  It brought in questions concerning extensive specialization, the autonomy of certain legal regimes and forms of cooperation, and the possibilities for both substantive and procedural conflicts between those fields of law.  The topic was clearly unusual and the Commission was well-placed to study it.  The final outcome should be to aim at a text that did not have direct formal force.  It could be a research report, a study, or a practical “toolbox” to assist judges and practitioners.  It should be prepared with the involvement of academicians and governments.  A seminar had been proposed and that would be useful.

She noted the topic of “shared natural resources” and said that close cooperation between States sharing natural resources was crucial to ensuring sustainable exploitation.  The establishment of clear jurisdictional lines in accordance with the Law of the Sea was the best way to promote constructive cooperation.  And on the issue of unilateral acts of States, there was great doubt about the need for a comprehensive set of rules.  A study limited to a few general rules and certain particular situations was preferable.  A study of State practice would be welcome.

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