DEVELOPING COUNTRIES URGED TO SUBMIT VIEWS ON INITIATIVES BEING CONSIDERED BY INTERNATIONAL LAW COMMISSION

Fifty-seventh General Assembly

Sixth Committee

24^th Meeting (AM)

DEVELOPING COUNTRIES URGED TO SUBMIT VIEWS ON INITIATIVES

BEING CONSIDERED BY INTERNATIONAL LAW COMMISSION

Concern in Sixth Committee that Evolving Global Legal Regime

May Be ‘One-Sided’ if Only Views of Richer Nations Are Heard

Developing countries should express their views to the International Law Commission so that codification and progressive development of international law would reflect it, the Special Rapporteur on Diplomatic Protection told the Sixth Committee (Legal) as it continued its debate on the Law Commission’s report on the work of its fifty-fourth session.

The rapporteur, JEAN DUGGARD, said he was disappointed at the few comments made by developing nations in the Committee, in the discussion of the International Law Commission report.  The situation was the same with written communications requested by the Commission.  Guidance to the work of the Commission was now being provided by the developed countries, primarily in Europe.  Until more communications came in from developing countries, international law would continue to be viewed from that perspective and the Law Commission would assume that developing countries acquiesced in its decisions.  He said that as an African, and the Law Commission’s only African Special Rapporteur, he hoped developing countries would speak up so the International Law Commission would not be one-sided.

The debate today focused on the final chapters of the Law Commission’s report, dealing with unilateral acts of States; international liability; responsibility of international organizations; fragmentation of international law; and other decisions, including new topics.

A number of developing countries representatives spoke today, with international liability among their issues.  Uruguay’s representative said the topic was of particular concern to her country since it had permeable borders and shared mighty rivers with other States.  The Commission should adopt a low threshold on level of liability.  A State that had been harmed should not bear the loss.

Also widely addressed was the issue of unilateral acts of States.  It was a complex matter, the representative of Greece said.  It could be codified, and there was considerable State practice, she added.  It was the interest of States as well as international legal order that rules were set to govern those acts.

Guatemala’s representative called the issue “fluid”, saying it contained ambiguities that were not necessarily bad.  Certain essential legal norms should be applied and general rules should determine which acts were binding and under what conditions.

The representative of Viet Nam said the focus in unilateral acts should be on measures to prevent and minimize transboundary harm.  States had the responsibility to inform affected States, and provide them with information and technical data. 

The representative of Belarus said codification on unilateral acts should take into consideration only those acts that produced legal effects.  Also, the criteria were missing to distinguish between legal and political unilateral acts. 

Also taking part in that debate this morning were the representatives of

New Zealand, Sweden, Portugal, Austria, Italy, China, Netherlands, Sierra Leone, Belarus, Myanmar and Brazil.

The Committee will meet again at 3 p.m. tomorrow, 5 November, to continue its debate on the International Law Commission report.

Background

The Sixth Committee (Legal) met this morning to continue its debate on the report of the International Law Commission on the work of its fifty-fourth session (document A/57/10 and Corr.1).  Focus was to be on the final chapters covering 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.)

Also this morning, the Committee was expected to take action on a number of draft resolutions relating to the work of the Special Committee on the Charter in the peaceful settlement of disputes, assistance to third States, and the report of the Special Committee.  In addition, action was to be taken on drafts relating to the Convention on safety of United Nations personnel and on jurisdictional immunities of States.

Draft Resolutions

The Committee has before it a draft resolution entitled prevention and peaceful settlement of disputes (document A/C.6/57/L.10).  By that draft, the General Assembly would urge States to make the most effective use of existing methodologies for preventing disputes and peaceful dispute settlement.  It would urge the Secretariat to continue enhancing concrete steps to improve the United Nations capacity to respond in matters relating to dispute prevention.  Those measures would include the strengthening of cooperative mechanisms for information-sharing, the development of a comprehensive early-warning plan, training and cooperation with regional organizations.  States would be encouraged to nominate candidates for inclusion in the register listing persons willing to provide fact-finding services.  They would also be encouraged to nominate conciliators and arbitrators provided for by certain treaties.

Also before the Committee is a draft on implementation of the provisions of the United Nations Charter related to assistance to third States affected by the application of sanctions (document A/C.6/57/L.11).  By the terms of this draft, the Assembly would invite the Security Council, its sanctions committees and the Secretariat to ensure a number of actions.  One would be to include an analysis of the likely and actual impact of sanctions on third States in both pre-assessment reports and ongoing assessment reports.  Recommendations for how to mitigate those impacts would also be invited.  Sanctions committees would be invited to provide opportunities for third States to brief them on the impacts they were experiencing and on assistance needed to mitigate the negative impacts.  The Secretariat would provide advice and information to third States to help them pursue the means to mitigate the negative impacts.  Where economic sanctions had severely affected third States, special representatives could be appointed or fact-finding missions could be dispatched to assess the situation and identify ways of assistance.  Working groups could also be established to consider such situations.

Further by the draft, the United Nations system, international financial institutions, other international organizations and regional organizations and States would be invited to specifically and directly address the special economic problems of third States.  The Assembly would request the Special Committee on the Charter to consider the question on a priority basis at its 2003 session.  It would also decide to consider elaborating measures to implement Charter provisions in this regard within the Sixth Committee (Legal) or in a working group within it.

By a draft before the Committee entitled 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 Assembly would decide that the Special Committee would hold its next session from 7 to 17 April 2003.  The draft 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.

By terms of 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), 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.

Finally, by a draft on the Convention on jurisdictional immunities of States and their property (document A/C/6/57/L.21), the Assembly would decide that the

Ad Hoc Committee on the topic should be reconvened from 24 to 28 February 2003.  It 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 had adopted the articles at its forty-third session in 1991.

Statements

ELANA GEDDIS (New Zealand) said her delegation welcomed the decision of the International Law Commission to resume consideration of the topic of international liability for injurious consequences arising out of acts not prohibited by international law.  A complete fulfilment of the prevention and response obligations developed by the Commission in the draft prevention articles adopted last year could never entirely eliminate the risk of accident.  As in the case of the prevention articles, she said it would be unwise for further work to be limited to activities occurring within the territory of a State party.  The harm caused from activities outside national jurisdiction must be addressed.

New Zealand agreed with the Commission’s general conclusions that the innocent victim should not, in principle, be left to bear the loss flowing from the activity causing the particular harm.  Any regime on allocation of loss should ensure that there were effective incentives for all involved in a hazardous activity to follow best practice in prevention and response.  Such a regime should cover the various actors, in addition to States, she said.

With regard to the Commission’s request for comment on whether particular regimes should be established for ultra-hazardous activities, she said it was New Zealand’s view that there might ultimately be scope for development of a regime which established loss-sharing schemes.  The Commission should initially concentrate its efforts on elaborating general principles that would shape the development of more detailed regimes.  It would be useful for the Commission to examine existing models and procedures for the allocation of loss.

ELIN MILLER (Sweden), speaking also for the other Nordic countries -- Denmark, Finland, Iceland and Norway -- on the topic “international liability for injurious consequences arising out of acts not prohibited by international law”, said those countries would like to see a document which covered both the prevention and the liability aspects of the question.  They welcomed the resumption of a study on the liability issue, and urged the Commission to give it a priority, noting that it would constitute a significant contribution to the further codification and progressive development of international law.  They cautioned against the drawing of an automatic analogy with traditional torts and compensation law which were standard in national laws.  Non-economic loss and environmental damage should be included.

She said the Nordic countries had responded to a number of questions addressed to States by the Commission.  They agreed with the general rule that the innocent victim should not participate in an inter-State dispute.  That, however, should not affect the rights of private individuals to have their losses compensated.  The operator with direct control over the operations should ultimately carry the loss, they said, and added that that should in no way reduce any liability that might rest upon the State concerned.  The focus should be to ensure that the loss was compensated.

On whether particular legal regimes should be established for ultra-hazardous activities, the Nordic countries said those activities required an enhanced degree of care in prevention on the part of States, even though the same rules applied in principle.  They recognized that a number of advances had been made in different areas providing for liability, insurance schemes and funds.  To contribute to countering the increasing fragmentation of international law, they believed that it might be useful for the Commission to draw up an inventory of the relevant instruments under international law, including those under negotiation.

Responding to other questions, they said injured persons and entities should, as a general principle, have access to justice in the appropriate domestic courts to sue the liable operator.  The issue of jurisdiction for such courts was a matter for private international law, taking into account the legal domicile of the operator, the site of the operation and other relevant factors. 

MARGARIDA REI (Portugal) said due consideration should be given, in the form that the Commission deemed appropriate, to important issues such as the relationship between functional protection by international organizations of their officials and of diplomatic protection.  The Commission should also consider cases where a State or an international organization administered or controlled a territory.

She said Portugal was concerned about the high threshold being set by the requirement of both lawful and habitual residence for stateless persons and refugees with regard to diplomatic protection.  The requirement could lead to a situation of lack of effective protection for individuals involved.  Further consideration should be given to the question of the requirements or preconditions for the exercise of diplomatic protection in respect of stateless persons or refugees who were non-nationals.

On “reservations to treaties”, her delegation attached particular importance to the question of the permissibility, compatibility or admissibility of reservations, and to the clarification of the role of treaty-monitoring bodies. It welcomed the Commission’s request for consultations on the subject with the Sub-Commission on the Promotion and Protection of Human Rights.

Portugal recognized the important role played by unilateral acts in international relations, and encouraged the Commission to continue to study the general and specific rules applicable to the various types of unilateral acts.  It attached great importance to the draft articles on the question of “prevention of transboundary harm from hazardous activities” finalized last year by the Commission.  She reiterated that rules should also be clearly established to deal with the cases where, despite prevention or where prevention was not possible or effective, an event or accident eventually occurred, thus producing transboundary harm.

She commented that by studying “fragmentation of international law”, the Commission would alert States about the issue, and could, eventually, adopt guidelines similar to those on “reservations to treaties”.

HANS WINKLER (Austria) said several attempts had been made to master the complex issue of international liability and its relevance, but methods so far explored always seemed to lead to an impasse.  For that reason, it was right that the Commission deal first with the issue of prevention.  His delegation would have preferred the conclusion of work on the draft articles on prevention before the liability issues were embarked upon.  He welcomed the selection of “fragmentation of international law” for study by the Commission.  He was convinced that the Commission’s analysis would help States with overlapping and conflicting norms and regimes.  He encouraged the Commission to organize or help in organizing a seminar on the topic to gain an overview of State practice.

He said Austria welcomed the Commission’s decision to establish a working group on the topic of “responsibility of international organizations”, and to limit the study to intergovernmental organizations.  The Austrian Government would like the study to also cover treaty bodies, established to monitor the administration of treaties, particularly in the fields of human rights and environmental issues.  It drew attention of the working group to the various decisions of human rights bodies which had concluded that States were responsible for human rights violations of international organizations of which they were members, even which such acts were attributable to the international organization in question.  Austria also welcomed the appointment of a Special Rapporteur and the establishment of a working group to deal with the topic of “shared natural resources”.

ROBERTO LAVALLE-VALDÉS (Guatemala) said he regretted that the International Law Commission had done so little work on the subject of unilateral acts.  They were a “slippery” topic that should be subjected to certain essential legal norms.  Those should be in the form of “power conferring” rules, with general rules determining which acts were binding as well as the conditions under which they would be binding.  The classical categories of unilateral acts were “promise, protest, recognition and waiver”.  Those were heterogeneous areas.  They implied certain questions:  how could uniform rules be developed?  what about unilateral acts that are “absences”, such as silence?  He said the Commission should deal with practical aspects; its theoretical considerations should be limited.

Some had said that the Commission was attempting to codify a concept that did not exist when it considered the question of unilateral acts, he recalled.  Yet considering the question of unilateral acts was not a matter of codification; it was, rather, a “fluid” issue and part of developmental law.  Some States wanted ambiguity, and that was not necessarily bad.  Like cholesterol, he said, ambiguity could be good or bad.  It could be constructive.  In considering unilateral acts, the ambiguity should be kept in mind during the debate about obligatory considerations.   

UMBERTO LEANZA (Italy) addressed the topic of responsibility of international organizations, one of the new subjects included in the long-term programme of work of the International Law Commission.

He also referred to the third party invocation of responsibility of international organizations as a result of violation of rights.  He said the doctrine recognized that international organizations might be active or passive agents in such situations.  That was accepted by the 1986 Vienna Convention on the Law of Treaties.  It envisaged that conventional norms should be invoked in questions concerning international responsibilities.  There were cases where organizations might take on international responsibilities.  There was also the 1949 International Court of Justice ruling that an international organization had a right to sue for damages in cases where its agents suffered injuries.  He said Italy was pleased with the definition of responsibility of international organizations given by the Commission.  The question was intensely debated in the Commission during its session.

He said the Commission should confine its study to intergovernmental organizations, leaving aside non-governmental ones.  There were intergovernmental organizations that had among their membership non-State bodies.  It was preferable that the Commission confined its study to responsibilities of intergovernmental organizations, and that it was based on practice.  He envisaged a progressive development of the law in that area.  There had been debates, he added, on whether Member States could be responsible for actions of international organizations.  It was important that the Commission considered the subject in a preliminary manner.

He noted that the Commission had correctly decided to consider the responsibilities of international organizations.  It was appropriate that the Commission dwelt on whether or not to consider the issue of the settlement of disputes.  The Commission’s actions should not be affected by the draft articles on State responsibility, which did not include provisions on settlement of disputes.

GUAN JIAN (China), speaking on “reservations to treaties”, said it was for States, and not a depositary, to decide whether or not a reservation was permissible.  A depositary was only entitled to examine the form of reservation, he said.  The draft guidelines on reservations to treaties should respect the letter and spirit of the relevant provisions of the law of treaties.  That would be conducive to the stability of the regime of the law of treaties, he added.  His delegation found serious problems with the role of monitoring bodies as provided for in the draft guidelines.  There should be a clear definition of the monitoring concept.  His delegation supported the Commission’s decision not to refer the draft guideline to its drafting committee.

On a related matter, he said the question of partial withdrawal of reservations to treaties should be handled with prudence.  While communication of reservations could be done by e-mail or facsimile, China believed that the formal written note verbale should be stuck to.

He said the topic of unilateral acts of States was a complex one and information on relevant State practice must be gathered.  The Commission must codify rules on the topic to enable States to clearly understand the consequences of unilateral acts.   

SUSANA RIVERO (Uruguay) said the scope of the consideration on diplomatic protection should not be broadened.  The discussion should stick to the traditional elements of nationality and the rule of exhausting all local recourse.   The other aspects of diplomatic protection could be undertaken later as a separate item.  Certainly, however, the traditional issues should be dealt with extensively.  Diplomatic protection should be exercised by a territory under protection of another State.

The question of international liability was particularly important for her country, she continued.  It had permeable borders and mighty rivers that it shared with other States.  It was also located between demographically dense neighbours.  Discussions in the working group had been productive.  The Commission should adopt a low threshold for level of liability.  A State that had been harmed should not bear the loss. 

CARL PEERSMAN (Netherlands) reiterated his country’s call on the International Law Commission to examine all aspects of the question relating to the compatibility of the rules on unilateral acts of States with the provisions of the Vienna Convention on the Law of Treaties.   That should be done before a determination was made on whether analogous application of the rules of the Vienna Convention to unilateral acts was possible and also necessary.

He said he believed that the general rules identified by the Special Rapporteur, included in the structure of the draft articles, would serve a useful purpose.  Among those rules was one which was in line with the authoritative determination of the binding nature of unilateral acts by the International Court of Justice in the nuclear tests case.  At the same time it recognized that the binding nature of unilateral acts was subject to conditions of validity and causes of invalidity as identified by the Special Rapporteur.

On another issue, he said a balance had to be struck between a restrictive approach in the formulation of unilateral acts and a more extensive one that took account of the need to guarantee legal relations and mutual confidence.  Grouping unilateral acts into two principal categories, as the Special Rapporteur had done, would be incompatible with the interpretation of, and the legal consequences attributed to, the various types of “classic” unilateral acts.

Speaking on international liability, he said the Commission should address prevention of and liability for harm caused to areas beyond the limits of national jurisdiction at a later stage, as part of the present topic or as a separate one. In the meantime, the scope of its work now should be on prevention of transboundary harm from hazardous activities, covering only the loss to persons, property and the environment within the national jurisdiction of a State.

The Netherlands agreed with the working group that the operator should bear the primary liability in any regime of allocation of loss.  It also agreed that States played a crucial role in designing appropriate international and domestic liability schemes for the achievement of equitable loss allocation.  The Netherlands suggested that the Commission’s work should concentrate on the codification of international law in that respect and, if need be, its progressive development.

ALLIEU I. KANU (Sierra Leone) commended the International Law Commission for clearly defining the rules governing the circumstances in which diplomatic protection might be afforded and exercised and the conditions for it.  The Commission was recognizing that under international law the State was the sole judge to decide whether its protection would be granted, the extent to which it would be done and when it would cease.  It had also recognized that protection must be exercised by peaceful means.  That was a crucial element in affording diplomatic protection, especially in the context of a small and weak country having to grapple with a situation where an internationally wrongful act had been committed against the national of a powerful State.

He welcomed the provision that a stateless person and a refugee could be afforded diplomatic protection if lawfully and habitually resident in the State granting it.  His delegation was, however, concerned about the situation of a person not technically classified as such under the terms of the 1951 Geneva Convention on the Status of Refugees.  Examples were people fleeing civil wars and taking refuge in safe States.  Who was to afford them diplomatic protection when their rights were infringed, as they had a right to travel to third States? he asked.

On “reservations to treaties”, he said the provisions in the draft article concerning communication of a reservation to a treaty were appropriate.  The communication could be made by mail or facsimile, and confirmed by writing.   Sierra Leone had duly noted the Commission’s request for information on State practice on unilateral acts and would endeavour, within its meagre resources, to respond. 

He said Sierra Leone welcomed the Commission’s decision to resume the study of the second part of “international liability” questions.  It similarly welcomed the inclusion of the following topics on the Commission’s programme of work:  “responsibility of international organizations”, “fragmentation of international law” and “shared natural resources”.

ANDREI POPKOV (Belarus) said he had no objection to the concept of diplomatic protection being a State’s right at the international level, but not as an obligation.  Belarus, like many other countries, covered the issue of protecting its nationals abroad in its Constitution.  It was an important external function of the State.  As a rule, the prerequisite for diplomatic protection was the stable link between the person hoping for diplomatic protection and the State of which that person was a national.  However, the draft articles to the exception for stateless persons and refugees were quite justified, taking into account the trends of contemporary international law aiming to ensure a protective regime for the vulnerable categories of persons who had lost links with a homeland and with a habitual residence.

On the question of exhausting local remedies, he said the International Law Commission should study the practice of State recourse to existing international judicial bodies.  It should also consider establishing ad hoc judicial bodies, such as international claims tribunals, to which citizens of another State had access without the precondition of exhausting local remedies.  The practical significance would be to recognize the recourse of States to judicial bodies in protecting rights and interests of citizens who were victims of intentionally wrongful acts.

On international liability, he said the perpetrator of the action that had resulted in a loss should bear the primary liability.  By analogy with existing treaties on liability for harm arising out of dangerous activities not prohibited by international law, the mechanisms of ensuring operator liability must be developed.  In exceptional circumstances, the residual State liability for loss not covered by the operator should arise.  He said the Commission should limit its consideration of the topic of international organization responsibility; only intergovernmental organizations should be considered at this stage.

He said the draft guidelines on reservations to treaties would be a valuable contribution to the progressive development of the Law of Treaties.  However, the intention to include provisions related to late formulation of reservations after expression of final State consent to be bound by treaties was of concern.  It was not necessary to go beyond the framework of the Vienna Convention which did not allow late formulation.  Establishing the practice of late formulation could invite abuse, and violations of the integrity of the norms.

Turning to the subject of unilateral acts, he said codification should take into consideration only those acts that produced legal effects.  Also, the criteria were missing to distinguish between legal and political unilateral acts.  The political elements often prevailed.  Many declarations reflected in the act were more declaratory than obligatory.  One of the main tasks of the Commission was to analyse international practice, and the views of experts, to find distinctive criteria for political and legal acts.

He said the subject of unilateral acts could be the basis for international obligations and could serve as the starting point for formulating new norms of international law.  The model of State conduct in the matter was that legal consequences would follow only after recognition by other States, in compliance with the imperative and other norms of international law.  The Commission should focus on considering such legal aspects of unilateral acts as recognition and protest by States.

WUNNA MAUNG LWIN (Myanmar) welcomed the Commission’s work on “diplomatic protection” -- a topic which had undergone great changes, even more so in the era of globalization.  It was essential that rules were codified on the subject.  The seven draft articles adopted by the Commission at its session reflected customary international law and incorporated progressive elements.  The link of nationality as a condition for diplomatic protection deterred the abuse of such protection.  He supported the Commission’s view about retaining the continuous nationality rule, allowing for exceptions where unfairness might otherwise result.

His delegation welcomed the addition of four new topics to the Commission’s programme of work.  It favoured the approach adopted by the Commission in focusing on intergovernmental organizations for its work on responsibilities of international organizations.

SIDNEY LEON ROMEIRO (Brazil) spoke on a number of topics before the Committee.  He said his delegation was pleased that the definition of diplomatic protection endorsed the fact that such protection arose only within a context of peaceful settlement of disputes between States, and never through recourse to the use or threat of force, except as allowed for in Article 51 of the Charter.  Diplomatic protection pertained by definition to States that exercised it in their discretion, and not at the behest of demands or requirements from individuals.  It should not be confused with human rights issues, he said.  His delegation therefore doubted the wisdom of further enlarging the scope of the Commission’s work on the topic.

He said Brazil underscored the importance of the Commission’s work on “unilateral acts” and was pleased to see the progress achieved so far.  It favoured a clear and precise determination of which authorities could by their words and deeds effectively engage the State’s responsibility in unilateral acts. It supported the decision to draw up a general list of acts that qualified.  It also considered that specific rules should be adopted concerning legal effects.    

Brazil’s representative said codification was required for international liability for injurious consequences arising out of acts not prohibited by international law.  There was need for specific rules on liability and reparation. On one hand, preventive measures of themselves were clearly insufficient once injurious consequences had come about.  On the other hand, domestic legislation of States on civil liability of enterprises for losses caused, more especially of a transborder nature, did not provide adequate guidance.

On “reservations to treaties”, he said it was crucial that the integrity and spirit of the instrument in question was not brought into question by a reservation, under any pretext.  States parties must be the ultimate judge of the admissibility of a given reservation.  He cautioned against attempts to devolve to subsidiary bodies or outside organs the prerogative of making that determination.

With regard to “fragmentation of international law”, he said it was doubtful that the topic could usefully be addressed in the format of draft articles.  One field in which the Commission could usefully concentrate its efforts would be in identifying existing structures and procedures for dealing with conflict of norms and how they might be adapted to fill in the existing void in hierarchy of international norms. 

NGUYEN DUY CHIEN (Viet Nam) said he favoured keeping the existing regime of reservations as stipulated in the Vienna Conventions of 1969, 1978 and 1986.  It had proved a necessary and useful tool in treaty-making.  It enabled States to join in a large number of multilateral treaties while maintaining their views on a treaty’s provisions if it allowed.  The provisions of the Conventions must be respected.  The guidelines should aim to clarify provisions on reservations and should not derogate from or modify them.

He reviewed specific guidelines, including those on forms of reservations and withdrawals, both of which he said should be made in writing.  Moving on to international liability, he said international cooperation on the matter should proceed on the principle of taking measures to prevent and minimize the transboundary harm and bad consequences caused by activities of one State in the territory of another.  To the extent possible, States on the territory in which activities were being carried out had the responsibility to inform affected States and provide them with information and technical data relating to schemes as well as consequences.  The cooperation must be based on the principles of mutual understanding, goodwill and benefit.

PHANI DASCALOPOULOU-LIVADA (Greece) said there was merit in the possibility of diplomatic protection being extended by a State of nationality of a ship to crew who held the nationality of a third State.  A flag State had traditionally been vested with wide powers in respect of the ship and its crew.

She said functional protection by international organizations of their officers, and the exercise of protection by a State for inhabitants of another territory administered or controlled by it, should be excluded from articles on diplomatic protection.  Such cases constituted autonomous questions that should be examined in a different context.  Her delegation agreed with articles 1 to 7 which covered, among others, application of local remedies for injuries in claims brought by nationals of a State.  Its reservations concerned a provision which covered continuous nationality which created an exception to the rule.

She said the issue of unilateral acts of States was a complex one.  It could be codified.  There was considerable State practice.  Unilateral acts of States constituted a source of international law.  It was in the interest of States, as well as international legal order, that rules were set to govern them.  The Commission must first elaborate the method it intended to use for its work on the topic.  Once that was completed, the study would allow the Commission to identify the common points and the differences in the various types of unilateral acts of States.  It would thereafter be easier for the Commission to proceed to the identification of the general rules that would be applicable to those acts.

JEAN DUGGARD, Special Rapporteur on Diplomatic Protection, said the Commission’s work on the matter had two aspects, codification and progressive development of international law.  The range of views expressed in the Committee reflected the differences in thinking within the International Law Commission itself.

He said he was disappointed at the few comments that had been made by developing nations in the Committee, a situation similar to that with regard to written communications.  It was true that smaller States had smaller legal departments than the industrialized nations.  Still, the International Law Commission was receiving guidance.  That was now being provided by the developed countries, primarily in Europe.  Until more communications came in from developing countries, international law would continue to be viewed from the developed countries’ perspective.

He said the Calvo clause on waiving diplomatic protection was a good example of the point.  It was being discussed, but few from the developing world had spoken on it.  Therefore, there was no telling whether it was still of interest or relevant, particularly to South American nations.  Without that expression of views, the International Law Commission assumed that developing countries had acquiesced in whatever decision it was making.  He said that, as an African, and the only African Special Rapporteur of the Commission, he wanted to ask developing countries to speak up so the International Law Commission would not be one-sided.

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