HARMFUL EFFECTS OF TRANSBOUNDARY POLLUTION CITED AS KEY TO PROPOSED LAW TO GOVERN INTERNATIONAL LIABILITY
| Press Release GA/L/3241 |
Fifty-eighth General Assembly
Sixth Committee
18th Meeting (AM)
HARMFUL EFFECTS OF TRANSBOUNDARY POLLUTION CITED AS KEY
TO PROPOSED LAW TO GOVERN INTERNATIONAL LIABILITY
Legal Committee Continues Review of Items from Law Commission Report;
Reservations to Treaties, Unilateral Acts of States Next to Be Taken Up
The question of international liability was a progressive area of international law closely related to vital interests in protecting the environment against harms arising from hazardous transboundary activities, Hungary’s representative told the Sixth Committee (Legal) this morning, as the Committee continued considering the report of the International Law Commission. Concluding the debate on diplomatic immunity and international liability, the Committee took up the issues of unilateral acts of States and reservations to treaties.
In addition to air pollution from abroad, said the delegate of Hungary, his country faced negative impacts on water resources from rivers also crossing boundaries. Water pollution and flooding harmed not only persons and property, but State patrimony and natural heritage
The representative of Mexico said damage to the global commons was of great concern. The International Law Commission should continue to focus on elaborating a regime on liability. The establishment of a compensation fund should be considered, with contributions from beneficiaries of the goods being transported. The fund could cover damage caused by the carriage of hazardous substances.
Portugal’s representative said the final form of the draft articles on international liability should amount to a convention to complement the instrument on prevention which had already completed. The Commission should continue working on the regime of allocation of loss and in its drafting of concrete articles. Issues that could be addressed included the definition of loss, hazardous activity and operator; the principle of subsidiary or residual liability of the State; limiting the liability of the operator; and the establishment of adequate remedies for victims.
Also speaking on those items this morning were the representatives of the United States, China, France and the United Kingdom.
Following the close of that debate, Enrique Candioti (Argentina), Chairman of the International Law Commission, introduced the chapters of the Commission’s report related to the new items on unilateral acts of States and reservations to treaties (VII and VIII).
With regard to unilateral acts of States, he noted that the item had been on the Commission’s agenda since 1996. The Commission’s difficulties with the topic continued. The conceptualization of the topic was elusive, as was its scope. Also, access to State practice was limited. A working group had made a set of recommendations on the best approach and the Commission had again requested governments to provide information on general practice relating to unilateral acts and the unilateral conduct of States.
Turning to reservations to treaties, he introduced 11 draft guidelines that had been adopted, along with three model clauses. He said they dealt with withdrawal and modifications, and the model clauses would give States and international organizations examples of provisions to be included in treaty texts. He then invited comments on the proposed definition of objections to reservations and on the advantages and disadvantages of clear statements of grounds for objections to reservations. Comments would also be welcome on the draft guideline for enlarging the scope of reservations, which had given rise to divergent positions.
Established by the General Assembly at its second session in 1947, the International Law Commission has the mandate to promote international political cooperation and to encourage the development and codification of international law.
The Committee will meet again at 3 p.m. tomorrow, Friday, 31 October, to continue considering chapters VII (unilateral acts of states) and VIII (reservations to treaties) in the Commission’s report.
Background
The Sixth Committee (Legal) met this morning to continue its debate on the report of the International Law Commission (document A/58/10). It was expected to conclude its debate on diplomatic immunity and international liability, and to take up the subjects of unilateral acts of States and reservations to treaties. (For background on the Commission and its report, see Press Release GA/L/3238 of 27 October).
Statements
LUIS SERRADAS TAVARES (Portugal) said his country continued to support the extension of the scope of the draft articles to cover diplomatic protection of crew members of ships. It believed that the flag State should be entitled to protect them, mainly in case the State of nationality could not exercise that right. It also thought that principal international organizations should be entitled to exercise diplomatic protection to their officials. A criterion would, however, have to be established, as to who had the priority to exercise that right: the international organization, or the State of nationality of the person in question. He reiterated a concern his delegation had expressed last year about diplomatic protection of Stateless persons and refugees, since the requirement of both lawful and habitual residence set a high threshold. He invited the Commission to consider the issue during the second reading of the draft articles.
He said his delegation believed that final form of the work on international liability should be a set of draft articles to complement those adopted on prevention. It, therefore, encouraged the Commission to continue with its work on the regime of allocation of loss, and into a drafting exercise of concrete articles. Issues that could be addressed included the definition of loss, hazardous activity and operator; the principle of subsidiary or residual liability of the State; limiting the liability of the operator; and the establishment of adequate remedies for victims.
STEVE MATHIAS (United States) said customary international law had not been established on the question of diplomatic protection for crew members of ships. The United States believed that the Commission should restrict its work on the topic of diplomatic protection to the codification of customary international law, and, therefore, protection of non-national crew members should be omitted from the scope of the project. The United States believed, in fact, that a number of the draft articles provisionally adopted or referred to the Commission’s drafting committee were not based on customary international law, he said. Although, it was willing to consider the progressive development of law, with respect to some of those issues, the United States would prefer the consideration of such development in a context more appropriate than the current diplomatic protection project. It encouraged the Commission to limit the scope of the project to the codification of customary international law.
Turning to the topic of international liability for injurious consequences not prohibited by international law, he said the United States agreed with the special rapporteur on the topic, namely that States should have sufficient flexibility to develop schemes of liability to suit their particular needs. It could not, however, agree with the rapporteur that States had a duty to ensure that some arrangement existed to guarantee equitable allocation of loss. While, States should continue to provide for liability of private parties in appropriate circumstances, the United States did not believe that there was an international legal obligation to do so.
He said international regulation in the area of liability ought to proceed in careful negotiations concerned with particular topics -– such as oil pollution, or hazardous wastes –- or with particular regions, such as environmental damage in Antarctica. He said work was proceeding in numerous negotiations, in which issues, such as environmental impact assessment, prevention and notification, were being given detailed treatment.
LIU ZHENMIN (China) commented on the exhaustion of the local remedies rule and the diplomatic protection of corporate persons, and he referred to the three articles adopted provisionally by the Commission at its recent session. He outlined points which should be made clear regarding the four exceptions to local remedies provided for in the draft articles (article 10). He said the right to exercise diplomatic protection should solely belong to the State of nationality of the corporation. The State of the nationality of shareholders, as a general rule, had no right to confer diplomatic protection on shareholders. China favoured the principle, established by the International Court of Justice in the Barcelona Traction case, as the primary basis for the exercise of diplomatic protection in respect of corporate legal persons. Foreign shareholders should first exhaust local remedies, before intervention by their State of nationality, in respect of diplomatic protection.
[The 1970 Judgment of the International Court of Justice involved an incorporated Canadian Corporation, Barcelona Traction, a majority of whose shareholders were nationals of Belgium. The court expounded the rule that the right of diplomatic protection, in respect of an injury to a corporation, belonged to the State, under whose laws the corporation was incorporated, and in whose territory it had its registered office, and not the State of nationality of the shareholders.]
On the protection of other legal persons set out in article 22, he said China was of the view that if the provisions on the exercise of diplomatic protection in respect of the corporation were to be applied mutatis mutandis to other legal persons it would give rise to serious problems. There was hardly any mature case law to draw upon, he said, and he proposed the deletion of the article.
RONNY ABRAHAM (France) reviewed the provisions on international liability and focused on exceptions to the exhaustion of local remedies. He said the principle, by which a State could exercise diplomatic protection for a Stateless person, had no basis in any of the relevant conventions. There was also some question with regard to discretionary remedies and how they should apply. For example, article 9 called for local remedies to be exhausted in the case of direct injury, but there was little guidance on situations in which there was indirect injury. Only if there were extraordinary difficulties should the exception be allowed.
Turning to diplomatic protection of corporations and shareholders, he said the State of the nationality of a corporation was a delicate question. Taking that to be the place of incorporation, or where the headquarters were located, ran the risk of corporations being double-protected. At the same time, it was important to make sure corporations were not left unprotected. Genuine links should be used and closest links considered. There should be a distinction between the rights of the State to exercise diplomatic protection on behalf of a corporation’s rights, which was covered by the principle, and the rights of shareholders, which were not. He would submit detailed observations to the Commission.
On the question of legal persons, he said, in principle there was no reason why legal persons other than corporations should not enjoy diplomatic protection. However, practice in that area was fragmented at present. There was also no reason why the practice for legal persons had to be the same as for corporations.
CHANAKA WICKREMASINGHE (United Kingdom) said it was his country’s consistent view that the nationality of a company was determined by the place of its incorporation, and that was reflected in both its claims rules and its investment protection treaties. It was concerned that the text of article 17 required an additional connection between an injured corporation and the protecting State. There was no basis for such an additional requirement, as a matter of established law. Moreover, the proposed language did not offer a clear basis, on which such a departure from the existing law could be justified. Finally, on the topic of diplomatic protection, he said the protection that an international organization, such as the United Nations, afforded to its staff members, was a functional one that did not form part of the present topic.
On the topic of international liability, he said he welcomed the findings of the special rapporteur, which provided a sound basis for any further exploration of the topic. The United Kingdom remained unconvinced that a convention or legally binding instrument would be the most fruitful outcome. A comprehensive study of the existing law, with a set of recommendations, might well be a more realistic and achievable goal. On the topic of unilateral acts of States, he said the United Kingdom remained unpersuaded that the topic was well-founded, and joined those who had asked that it should be removed from the Commission’s agenda.
ARPAD PRANDLER (Hungary), a previous Chairman of the Committee, said he wished to express his thanks to all in the Committee and the International Law Commission. He said the subject of international liability was not only an important issue for the progressive development of international law, but it was also closely related to the vital interests of his country in protecting the environment against harms arising from hazardous transboundary activities. In addition to air pollution from abroad, his country faced negative impacts on its water resources since 95 per cent of its water came from rivers also crossing borders. Pollution and flooding had become common, with damage not only to persons and property, but to State patrimony and natural heritage.
Reviewing actions that had been taken in the area of transboundary harm, he said the broad policy considerations, as outlined by the special rapporteur, were a sign of great progress. That included maximum freedom of choice for States, steps for prevention and reparation and ensuring that innocent victims did not suffer. On that basis, it was more appropriate to speak of legal regimes for liability, in case of loss rather than regimes, for allocation of loss. In that way, the primary responsibility was borne by the operator and a strict liability regime was supported by insurance plus government back-up. State practice and case law had already established a regime of clearly defined principles and specific rules on liability. They were part of treaty and customary law. The Commission should take that into consideration in developing this area of international law.
ALFONSO ASCENCIO (Mexico) said damage to the global commons was a great concern. The viability of the topic on liability could not be called into question. The Commission should continue to focus its work on elaborating a regime on liability. It should give thought to establishing a compensation fund for damage caused by the carriage of hazardous and noxious substances by sea. Contributions to the compensation fund should be made by the beneficiaries of the goods being transported. The burden of proof for damage should not be on the innocent victim. There should be the application of the “polluter pays” principle in procedural matters.
He said the draft articles should include strict liability provisions. Limits should be set for liability, such as time limits to invoke it. The State should bear ultimate responsibility for cross-boundary harm. Aspects pertaining to environmental damage per se should be included at a later stage. A convention rather than a protocol was a preferred final form of the draft articles.
Introduction of Further Commission Items
ENRIQUE CANDIOTI (Argentina), Chairman of the International Law Commission, introduced chapters VII and VIII of the Commission’s report -– unilateral acts of States and reservations to treaties -– respectively. He said unilateral acts of States had been on the Commission’s agenda since 1996. Among the difficulties encountered were, arriving at a clear conceptualization of the topic, its scope, and access to State practice. The debate in the Commission had revealed that the main difficulties with the topic persisted. A working group established by the Commission had made a set of recommendations on the best way the Commission should approach the topic; the Commission again asked governments to provide information on general practice relating to unilateral acts and the unilateral conduct of States, along the lines of interest to the Commission.
On the reservations to treaties, he said the Commission adopted 11 draft guidelines (with 3 model clauses) dealing with withdrawal and modifications, which he later introduced. He drew attention to an explanatory note to the Guide to Practice, which provided an explanation to the structure of the guide and referred to the use of model clauses, three of which, were adopted for the first time at the Commission’s recent fifty-fifth session. The model clauses were intended to give States and international organizations examples of provisions that might be useful for inclusion in the text of a treaty.
The Commission chairman invited comments and observations on issues related to the proposed definition of objections to reservations, which had been reproduced in paragraph 34 of its report. He said the Commission also sought comments on the advantages and disadvantages of clear statements of grounds for objections to reservations formulated by States or international organizations. Another related to draft guidelines on enlargement of the scope of reservations, which gave rise to divergent positions.
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