Fifty-ninth General Assembly

Sixth Committee

17^th Meeting (AM)

Legal Committee is told draft articles on diplomatic protection

submitted to governments for observations by start of 2006

 

Review of International Law Commission Report Begins; Liability

For Transboundary Harm, Unilateral Acts of States among Other Issues

(Issued on 2 November 2004.)

The Sixth Committee (Legal) this morning began a 10-day debate on the report of the International Law Commission, focusing initially on diplomatic protection, international liability and some decisions of the Commission’s fifty-sixth session in Geneva.

The Commission was established by the General Assembly at its second session in 1947 to promote international political cooperation and encourage the progressive development and codification of international law (Article 13 (1a) of the United Nations Charter).

Introducing the Commission’s report today, the Chairman, Teodor Viorel Melescanu (Romania), said the Commission had adopted, on first reading, a set of 19 draft articles on diplomatic protection.  The draft articles had been submitted to governments for observations and comments to be received by 1 January 2006.  Work on the topic began in 1997.

He said the Commission had made remarkable progress on the question of international liability. A complete set of eight draft principles had been adopted on first reading and was entitled “draft principles on allocation of loss in the case of transboundary harm arising out of hazardous activities”.  Written comments were being sought from governments, including on the form they should take.

Under “other decisions”, he said the Commission agreed to include two topics on its work plan and two new special rapporteurs had been appointed for them.  Those were “effects of armed conflicts on treaties” and “expulsion of aliens”.

On a General Assembly proposal (resolution 58/250) to end summary recordings of bodies entitled to them, the Commission reiterated its previously stated conclusions that summary records were an inescapable requirement for the procedures and methods of its work.  They were an indispensable part of the process of progressive development of international law and its codification.  The Commission chairman hoped the Committee would endorse its conclusion on the issue.

At the outset of the debate, the Committee Chairman, a former Commission member and its former special rapporteur on diplomatic protection, Mohamed Bennouna (Morocco), said the debate on the Commission’s report was the high water mark in the Committee’s work.

Speaking on the Commission’s report, the representative of the Czech Republic said he was satisfied that the basic principle of the draft articles on diplomatic protection of corporations reflected the general principle that it was the State of corporation’s nationality which had the exclusive right to exercise that protection in respect of an injury to that corporation.

The representative of the United States said the Commission should limit its work on diplomatic protection to the codification of customary international law.  The draft articles diverged unjustifiably from it.

Norway’s representative spoke for the Nordic countries, saying he was pleased to see a provision on behalf of stateless persons and refugees under diplomatic protection.  While it deviated from the traditional rule that a State exercise diplomatic protection only on behalf of its nationals, the provision now provided protection for foreign nationals lawfully and habitually residing in a State.

China’s representative said the text on international liability was a useful addition to the 2001 instrument on protecting against transboundary harm.  The principles should take the final form of a declaration, a guiding principle or a model law to form the basis for a future convention.

Statements were also made by the representatives of the Netherlands, Sweden, Argentina, Italy, New Zealand and Finland (on behalf of the five Nordic countries).

The Sixth Committee will meet again at 9:30 a.m. tomorrow, Tuesday, 2 November, to continue consideration of the Commission’s report, including its work on diplomatic protection and international liability.

Background

The Sixth Committee (Legal) met this morning to begin its consideration of the report of the International Law Commission.

The Committee had before it the Commission’s report (document A/59/10) on proceedings of its fifty-sixth session (Geneva, 3 May to 4 June, and 5 July to
6 August).  The report indicates that Teodor Viorel Melescanu (Romania) was Chairman of the 34-member Commission.  First Vice-Chair was Hanqin Xue (China) and Second Vice-Chair was Constantin Economides (Greece).  Victor Rodriguez Cedeno (Venezuela) was Chair of the Drafting Committee to be composed in four parts covering:  diplomatic protection; responsibility of international organizations; reservations to treaties; and international liability.  Finally, the Rapporteur for the session was Pedro Comissario Afonso (Mozambique).

The report states a study group was established on fragmentation of international law:  difficulties arising from the diversification and expansion of international law.  Working groups were set up on:  shared natural resources; international liability for injurious consequences of acts not prohibited by international law (international liability in case of loss from transboundary harm from hazardous activities); and unilateral acts of States.

The report further states that the Commission’s work centred on diplomatic protection; responsibility of international organizations; shared natural resources; international liability; unilateral acts of States; and reservations to treaties.

On diplomatic protection, the Commission states it considered the Special Rapporteur’s report dealing with the relationship between diplomatic protection and functional protection by international organizations; between diplomatic protection and human rights; and diplomatic protection and protection of ships’ crews by the flag State.  Two draft articles were referred to the Drafting Committee, which was also requested to consider elaborating a provision on diplomatic protection relative to ships’ crews.  Nineteen draft articles adopted on first reading were to be transmitted with commentaries to governments for comment.  The Special Rapporteur was asked to consider and present views on the relationship between diplomatic protection and the “clean hands doctrine” concerning a court’s approach to the wrong action of a complainant.  On this matter, the Commission is seeking views of governments on all aspects of the draft articles and commentaries.

The Special Rapporteur’s report on responsibility of international organizations dealt with attribution of conduct, the report continues.  Four draft articles and commentaries were adopted (numbers 4-7).  Three articles had been adopted last year on general principles.  To continue in the general scheme of the articles on State responsibility for internationally wrongful acts, the Special Rapporteur would focus in his next report on:  breach of an international obligation, circumstances precluding wrongfulness, and responsibility of an international organization in connection with the wrongful act of a State or another organization.

Therefore, the Commission reports it is seeking comments on three aspects of the responsibility.  First, since relations between an international organization and its member States are largely governed by the organization’s rules, and since the legal nature of an organization’s rules within international law is controversial, what scope should the Commission give to its study?  Second, since “necessity” could be invoked by a State under certain conditions to preclude wrongfulness in safeguarding an essential interest against a grave and imminent peril, could necessity be invoked by an international organization under a similar set of circumstances?  Finally, in the event a memberState took a conduct that appeared to breach an international obligation of both the State and the organization, would the organization be regarded as responsible under international law?  What if the wrongful conduct was only authorized but not requested by the organization?

On shared natural resources, the Commission states it considered the seven draft articles contained in the Special Rapporteur’s report and also established an open-ended working group on transboundary groundwaters, chaired by the Rapporteur.  Two informal briefings on groundwater were held by experts from the Economic Commission for Europe (ECE), the United Nations Educational, Scientific and Cultural Organization (UNESCO), the Food and Agricultural Organization (FAO) and the International Association of Hydrogeologists (IAH).

Within its present focus on transboundary groundwaters, the Commission continues, the Special Rapporteur in his next report would submit a full set of draft articles on the law of transboundary aquifer systems in the general framework he had already outlined.  The Commission would welcome views on the framework and would also welcome information on practices relevant to the articles.  In particular, that would cover bilateral or regional practice on allocating groundwaters and managing non-renewable transboundary aquifer systems.

Turning to international liability, the Commission reports it established a working group to examine the Special Rapporteur’s proposals, referred eight draft principles to the Drafting Committee and adopted on first reading a set of draft principles and commentaries on allocating loss in transboundary harm arising from hazardous activities.  The Commission welcomes comments on the draft principles and commentaries, particularly concerning the final form.  It also notes that the commentaries are organized to explain the scope and context of each principle and to analyse trends and options to assist States in taking national measures to implement and elaborate specific international regimes.

Work on unilateral acts of States focused on the survey of State practice containing in the Special Rapporteur’s report.  A working group on the matter was reconstituted to consider examples of unilateral acts.  For the Special Rapporteur’s next report, the Commission would like to receive comments that would cover the evolution and lifespan of unilateral acts to determine whether there were general rules and principles that might apply to the operation of such acts.  States could focus on such elements of practice as:  date, author/organ and its competence, form, content, context and circumstances, objectives, addressees, reaction of addressees and third parties, grounds, implementation, modification, termination/revocation, legal scope, court decisions and arbitral awards.

On reservations to treaties, the Commission adopted five draft guidelines dealing with widening the scope of reservation, modification and withdrawal of interpretative declarations.  The Special Rapporteur’s ninth report was considered and two draft guidelines were referred to the Drafting Committee.  Those dealt with the “definition of objections to reservations” and “objection to late formulation or widening a reservation’s scope”.

The Study Group on Fragmentation of international law considered the preliminary report on a study of the function and scope of the “lex specialis” rule and self-contained regimes.  It also considered outlines on studies related to:  the application of successive treaties related to the same subject; the modification of multilateral treaties between only certain of the parties; interpretation of treaties in light of relevant rules of applicable international law to relations between the parties; and hierarchy in international law, “jus cogens” and obligations “erga omnes”.

Further, the Commission reports that two new topics are included in its current work programme on the recommendation of its Planning Group: “expulsion of aliens” and “effects of armed conflicts on treaties”.  Its long-term programme of work includes “obligation to extradite or prosecute”.

Also during the session, the report states, the Commission continued traditional exchanges with the International Court of Justice, the Inter-American Juridical Committee, the Asian-African Legal Consultative Organization and the European Committee on Legal Cooperation and the Committee of Legal Advisers on Public International Law.  A training seminar with 24 participants was conducted.

Finally, the Commission decided to hold next year’s session in Geneva from 2 May to 3 July, and from 4 July to 5 August.

International Law Commission

The International Law Commission was established by the General Assembly at its second session, in 1947, with a view to giving effect to Article 13, paragraph 1a, of the Charter, namely, promoting international cooperation in the political field and encouraging the progressive development of international law and its codification.  The objective of the Commission is to ensure the realization of the Charter provision.  The Commission concerns itself primarily with public international law, but it is not precluded from entering the field of private international law (resolution 174 (II)).

The statute of the Commission, annexed to resolution 174 (II), was subsequently amended (resolutions 485 (V), 984 (X), 985 (X) and 36/39).  The Commission consists of 34 members elected for a term of five years.  The last election was held at the fifty-sixth session of the General Assembly (decision 56/311), and the next election will be held during the sixty-first session in 2006.

Introduction of Commission’s Report

TEODOR VIOREL MELESCANU (Romania), Chairman of the International Law Commission at its fifty-sixth session, introduced the Committee’s report on what he called its “productive session”.  He said the first reading had been completed on two topics, provisions on two other topics had been adopted, progress had been made on the approach and structure for two more, and two new topics had been added to the work plan, with Special Rapporteurs appointed for them.

The report’s structure was the same as last year, he continued.  The Commission relied on the Committee for comments from governments, both within the Committee and later in written form.  Two substantive chapters would be taken up first, Diplomatic Protection (Chapter IV) and International Liability (Chapter VII).  Other decisions (Chapter XI) would be taken up with them.

On diplomatic protection, he said a set of 19 draft articles had been adopted on first reading.  They had been transmitted to governments for comments to be received by January 2006.

Part One on General Provisions contained articles 1 and 2, dealing with definition, scope and the right to exercise diplomatic protection.  They had not changed essentially since adoption in 2002.

Part Two on nationality had been divided into three chapters.  Chapter 1 contained article 3 on “nationality”.  It established the principle that the State entitled to exercise diplomatic protection was the State of nationality.  Chapter II on “natural persons” contained articles 4-8 and defined State of nationality of natural persons, the continuous nationality requirement, the complex situation of multiple nationality and the exceptions to the basic rule in the case of stateless persons and refugees.  Minor drafting changes had been made to these articles, with the only substantive change relating to the continuous nationality principle.

Finally, he said Chapter III on “legal persons” contained articles 9-13 and dealt with the question of the State of nationality for diplomatic protection of corporations.  Among others, included here was recognition of the basic principle the International Court of Justice had affirmed in the Barcelona Traction case, that the State of shareholder nationality was not entitled to exercise diplomatic protection on their behalf when the injury was solely to the corporation, with two exceptions:  where the corporation had ceased to exist for a reason unrelated to the injury; and where the corporation had the nationality of the State alleged to have caused the injury and incorporation was a precondition for doing business there.  A balance had been struck between recognizing the right of a shareholders’ State to intervene when the corporation was injured while placing limits on it.  Also covered here was a saving clause to protect the interests of shareholders where their rights were directly injured by an internationally wrongful act and the applicability of these articles to other legal persons.

Continuing, he said Part Three dealt with the “exhaustion of local remedies” rule.  It contained articles 14-16, all adopted last year.  The phrase “legal remedies” had replaced “as of right” for excluding discretionary mechanisms of conflict resolution.  Also covered here was the categorizing of claims for purposes of exhausting the local remedies rule and with exceptions to the rule.

Part Four on Miscellaneous provisions contained articles 17-19, he said.  They were newly considered and dealt less with rules of exercising diplomatic protection and more with how they related to other rules of international law.  Covered here was a saving clause to preserve the right to secure redress through procedures other than diplomatic protection, including under universal or regional human rights treaties; the precedence given to alternative, special regimes for protecting foreign investors over diplomatic protection; and the special case of ships’ crews, where the State of a crew’s nationality had the right to exercise diplomatic protection on its behalf while acknowledging that the State of the ship’s nationality also had a right to seek redress when the injury resulted from an internationally wrongful act.

Turning to International Liability, he said the Commission had completed the first reading of draft principles on allocating loss in the case of transboundary harm from hazardous activities.  The Commission sought comments on the eight draft principles and commentaries, particularly on their final form.  Draft articles would be counterpart, in form and substance, to the draft articles on prevention.  Draft principles, however, were favoured due to the different characteristics of particular hazardous activities, which could require adoption of different approaches and specific arrangements.  The choices or approaches may also have to vary under different legal systems.  Also, draft principles would not require an unachievable harmonization of national laws and legal systems.

Further, he said the draft principles offered a legal regime that was general and residual and without prejudice to the relevant rules of State responsibility.  The scope of the liability aspects were the same as the scope of the draft articles on prevention adopted in 2001.  The question of global commons would be treated separately.  Certain policy considerations were covered, such as providing for compensation to innocent victims and minimizing damage by providing for contingency plans and response measures over and above those in the prevention instrument.

In addition, he said, the draft principles sought to attach liability on the operator without absolving States from discharging duties of prevention under international law.  That was a shift away from a former emphasis on State liability.  Now the emphasis was on State cooperation under the “polluter pays” principle, the basic scheme seeking to spread loss among multiple actors, including the State where appropriate.  The text was self-explanatory and the principles contextualized the relevant provisions of the Rio Declaration in that they stressed the need to develop national law on liability and compensation, as well as achieve cost internalization along the polluter-pays principle.

Detailing, he said draft principle 1 dealt with the scope of application, which was the same as the draft articles on prevention.  They related to “activities not prohibited by international law which involved a risk of causing significant transboundary harm through their physical consequences”.  Four elements were involved:  human causation; risk; (extra)territoriality; and physicality.  An additional criterion related to damage.  Draft principle 2 dealt with the use of terms, including the threshold requirement for making a legal claim and the definition of damage.  Principle 3 dealt with the objective or aims, and it consisted of three elements:  ensuring prompt and adequate compensation to victims; the notion that “victim”, although still not formally defined, included both natural and legal persons, including States; and the notion that transboundary damage included damage to the environment.

Further, he said draft principle 4 on prompt and adequate compensation was a key provision supported by treaty practice and domestic legislation on four concepts:  that each State should take measures to establish liability regimes; that those regimes should include imposition of liability on the operator; that the requirement for proof without fault may be subject to conditions, limitation or exceptions depending on circumstances such as damage from armed conflict or natural phenomena; and that sufficient financial guarantees for prompt and adequate compensation should come from integrating various forms of securities, insurance and funding mechanisms.

Response measures were covered by principle 5, he continued.  The emphasis was on the general obligation of States to ensure that activities within their jurisdiction and control did not give rise to transboundary harm.  Principle 6, on international and domestic remedies, stressed international and domestic compensation procedures.  The former sought to bring specificity to the procedures involved, such as through mixed claims commissions or negotiations for lump-sum payments.  The domestic procedures section was an equal right of access provision that conferred competence on both administrative and judicial mechanisms to ensure claims were effectively entertained.  Principle 7, on development of specific international regimes, encouraged States to cooperate in developing international agreements on a global, regional or bilateral basis in three areas:  prevention; response measures; and compensation/financial security.  Finally, principle 8, on implementation, treated the legislative, regulatory and administrative measures for implementing the other principles.

Reviewing Chapter XI on other decisions and conclusions, he again reaffirmed the importance of the Codification Division of the Legal Affairs Office in the Commission’s work.  He said the Division was involved with the content and substance of the Commission’s work beyond its procedural and technical servicing function, which provided a continuous and useful interaction between the Commission and the Committee.  He noted the updated Survey of Liability Regimes and the thematic presentation of comments and observations from governments and international organizations on Responsibility of International Organization.  They should be issued as official Commission documents.

On a General Assembly proposal (resolution 58/250) to end summary records of bodies entitled to have them, the Commission reiterated its previously stated conclusion that such records were an indispensable part of the process of progressive development of international law and its codification.

Statements

JOHAN G.LAMMERS (Netherlands) said his country attached great importance to the codification and progressive development of the rules of international law governing diplomatic protection.  It was pleased that the International Law Commission had adopted, on first reading, a complete set of draft articles on the topic.  It had taken note of the Commission’s invitation to governments for their comments and observations on the articles.  His Government would make use of the opportunity and intended to seek the advice of the independent Netherlands Advisory Committee on Public International Law Issues, before transmitting its response to the Secretary-General as requested by the Commission.

Speaking on international liability, said his country supported the main thrust of the “draft articles on the allocation of loss in the case of transboundary harm arising out of hazardous activities” adopted by the Commission on first reading.  It agreed with the underlying notion of the draft principles, namely, that the question of international liability for transboundary harm also arose in the event that a State had complied with its international obligations relating to an activity that had been carried out under its jurisdiction or control.

The draft principles sought to fill that gap in international law through the provision that States should take necessary measures to ensure the availability of prompt and adequate compensation for victims of transboundary damage caused by hazardous activities.  The second reading of the draft articles would provide an opportunity for the further elaboration of the draft principles regarding a regime for specific hazardous activities.

As regards the future form of the draft principles, he said it should not be different from that on the prevention of transboundary harm.  As a minimum, his Government believed that the obligation of States to take necessary measures to ensure that prompt and adequate compensation was available for victims of transboundary damage caused by hazardous activities should be incorporated into the draft articles on the prevention of transboundary harm from hazardous activities.  It could be supplemented by guidance in the form of principles, but should itself take the form of an obligation to ensure that innocent victims of transboundary damage would indeed not be left uncompensated.

CARL HENRIK EHRENKRONA (Sweden), speaking also for the other Nordic countries (Denmark, Finland, Iceland and Norway) said those countries appreciated the achievements of the Commission with regard to its work on diplomatic protection and the responsibility of international organizations.  On the Commission’s choice of topics for its study, he said that the Nordic countries had long been among those who had frankly proposed that the issue of “Unilateral acts of States” should be removed from the Commission’s agenda.  From the reports, it did not seem as if the Commission had ever discussed such a possibility.  The Nordic countries maintained their recommendation in that respect.

Turning to the Commission’s proposed new topics, he said the exact focus of the Special Rapporteur’s work on “Expulsion of Aliens” had not yet been made clear.  As for the topic “Effects of armed conflicts on treaties”, he said it could work as a more narrow and rather focused topic, thereby reflecting previous calls for flexible but restrictive approaches when topics were being chosen.  He said the Commission should focus on work that responded to real needs and problems of international cooperation, and thus addressed areas where legal regulation was currently lacking but desirable.  The Commission should take account of its own comparative advantage.  He encouraged the Commission to continue to look for ways to make its sessions as productive and efficient as possible.

WEGGER STROMMEN (Norway), also for the Nordic countries, said they were particularly pleased that the Commission had drafted a provision on behalf of stateless persons and refugees in its draft principles on diplomatic protection.  It was true that the provision would seem to deviate from the traditional rule that a State might only exercise diplomatic protection on behalf of its nationals.  A State might exercise diplomatic protection also on behalf of a foreign national, lawfully and habitually residing in that State, and which in that State’s judgement clearly was in need of protection without necessarily formally qualifying for status as a refugee.

They were pleased to note that the draft articles on diplomatic protection would not exclude protection exercised by a flag State and vice versa.  Important protective measures established by the law of the sea were consequently not undermined.  They hoped the articles could be adopted as a convention in a relatively short time.

JAN CIZEK (Czech Republic), speaking on diplomatic protection, said his delegation had noted with satisfaction that the Commission had decided to stick to the traditional concept of the topic, according to which it was the so-called State of nationality which was entitled, not obliged, to present, on its own behalf, an international claim in respect of an injury inflicted on its national, either natural or legal person, which was an alleged internationally wrongful act of another State.  He also expressed satisfaction with the fact that the basic principle of the draft articles concerning the exercise of diplomatic protection of corporations reflected the general principle that it was the State of nationality of corporation which had the exclusive right to exercise that protection in respect of an injury to that corporation.

He reiterated the Czech delegation’s misgivings about the extension of the scope of the draft articles to protection exercised by a flag State, in relation to an injury inflicted on members of the crew of a ship who were nationals of a State different from the flag State.  It believed that the exercise of such a protection could be reflected in the commentary to article 17 of the draft articles, dealing with actions and procedures under international law other than diplomatic protection.  With regard to the question of “the clean hands doctrine” in the context of diplomatic protection, his delegation agreed with the conclusion of the Special Rapporteur on diplomatic protection that there was no clear and sufficient authority which would justify the inclusion of a provision on that doctrine in the draft articles.

GAO FENG (China), on the diplomatic protection text, said the matter of which rights belonged to shareholders and which to corporations should be decided by the municipal laws of the State.  The article on the exhaustion of local remedies should elaborate further:  who was to make the decision that they needed not to be exhausted, and to whom was the injured party to prove it?  The text should clarify the precedence given to special treaty provisions.  The Commission should consider a separate article on a State’s right to seek redress for foreign crew members on a ship of its own nationality.

On international liability, he said the instrument on protection was a useful guide but prevention measures could not eliminate the possibility of transboundary harm.  Compensating victims and determining the liability of an operator or State were important issues still to be resolved.  The provisions of the draft principles on allocation of loss were balanced and would contribute significantly to resolving compensation issues in transboundary damage.  Also useful were the provisions for prompt and adequate compensation to victims.  However, the inclusion of damage to the environment lacked adequate grounds in international law, while the strict liability regime governing transboundary damage lacked flexibility and was inconsistent with current international practice.  The principles should take the final form of a declaration, a guiding principle or a model law that would form the basis for a future convention.

EUGENIO CURIA (Argentina) said his delegation was satisfied that the Commission had completed adoption, on first reading, of draft articles on diplomatic protection and international liability.  It believed that a second reading would be undertaken next year leading to the eventual adoption of the draft articles on the two topics.  It supported the Commission’s decision to include two more topics for study –- “Effects of armed conflicts on treaties” and “Expulsion of Aliens”, as well as a third topic for its long-term programme, “Obligation to extradite or prosecute”.  The last topic was of particular interest as it had been included in multilateral treaties in the last five years.

On international liability, his delegation welcomed the provision in the draft principles on the payment of prompt and adequate compensation for transboundary harm.  That provision (article 4), among others, called for the establishment of liability regimes by States.  Argentina also supported the objective of another provision, namely, that which said liability regimes should include the imposition of liability on the operator or where appropriate other person or entity, without requiring the proof of fault.

IVO BRAGUGLIA (Italy) said he would be making detailed written commentary in a few months.  In the meantime, with regard to diplomatic immunity, he said the framework for protecting shareholders needed to be strengthened, but there was not much of a basis for that in international law, in part because it was often difficult to establish the nationality of shareholders.  The Commission’s solution to the protection of crew members was timely.  The draft principles on transboundary harm were appropriate in scope.  The text would be a useful guide in the area of determining international liability.  However, since the principles would be difficult to implement at anything broader than a regional level, the Commission had opted well to keep them as principles.

JULIAN LUDBROOK (New Zealand) said that on some areas of the draft principles on diplomatic protection, such as the right to exercise diplomatic protection, his delegation might have been inclined to opt for slightly different and perhaps more flexible rules to ensure that individuals were not left without effective protection.  It thought that the formulation on the exception to the local remedies rule represented a carefully circumscribed acknowledgement of the fact that an individual might be injured by the act of a foreign State outside or within its territory in circumstances where the individual had no real connection with the territory.  In such circumstances, it might well be unreasonable or unjust to require the exhaustion of local remedies.  It welcomed the inclusion of a provision relating to ships’ crews.

On international liability, he said that, although prevention of harm was a key issue, the question of who had to carry the loss could not be ignored.  His delegation was pleased that the Commission had adopted, on first reading, a set of principles on the liability aspect of the topic to complement the draft articles on prevention to fill the remaining gap concerning the subject.  It generally supported the draft principles on international liability.  He said the principles were consistent with the evolving shape of international liability instruments and could, therefore, provide an important overarching framework to guide the development of new ones and to shape the appropriate principles where there were none.

IRMA ERTMAN (Finland), speaking also for the other Nordic countries (Denmark, Iceland, Norway and Sweden), said that, overall, they were content with the draft principles on international liability.  They favoured a civil liability model taking a general, rather than a sectoral, approach.  They considered the principles pragmatic as they aimed to ensure compensation rather than serve as an environmental policy instrument.

The Nordic countries considered that the objective of the principles was the right one.  The situation of victims should be the primary focus of the liability regime.  That was the starting point already in principle 22 of the 1972 Stockholm Declaration on the Environment and in principle 13 of the Rio Declaration on the Environment and Development.  Furthermore, several environmental liability regimes at the national level were based on a similar approach.

They welcomed the principle that liability should not require proof of fault.  They supported the view that damage to the environment per se was actionable, requiring prompt and adequate compensation.  Such compensation should not only be monetary, but should allow for the reimbursement of reasonable measures of restoration and response.

They shared the view that liability principles should primarily be based on civil liability and, consequently, that a liability regime ought to impose liability on the operator.  In addition, there should be appropriate financial guarantees as proposed under principle 4 of the draft text.  With regard to the title of the principles, the Nordic countries said it was activities not acts which should be subject to a liability regime.  That would be in line with the International Law Commission’s draft articles on the Responsibility of States for Internationally Wrongful Acts.

The Commission’s draft instrument on the Prevention of Transboundary Harm from Hazardous Activities should be adopted in conjunction with the adoption of liability principles.  The two instruments could either be merged into a single General Assembly resolution or presented as two separate, but coordinated, resolutions.

TODD BUCHWALD (United States) said he would be submitting detailed written comments later.  Now, there were positive developments in the Commission’s report, but also some areas of concern.  The revision removing the limits on the requirement of exhausting local remedies was welcome.  However, some of the commentary language was troubling, as were the stated exceptions.  Another positive development was that the draft articles did not try to define the relationship between diplomatic and functional protection.

He said the Commission should limit its work on diplomatic protection to the codification of customary international law.  At the most, its work should vary from customary law or supplement it only where sound public policy considerations supported it, as did a broad consensus of States.  Further, the draft articles diverged unjustifiably from customary international law with regard to the rule of continuous nationality.  The draft article on protection of shareholders was also inconsistent with customary international law.

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