Fifty-ninth General Assembly

Sixth Committee

23^rd & 24^th Meetings (AM & PM)

WIDER ADHERENCE TO EXTRA PROTOCOLS TO GENEVA CONVENTION ON VICTIMS

OF ARMED CONFLICT IS SOUGHT BY LEGAL COMMITTEE

 

Approved Text Also Covers Concern with Involvement of Children,

Protection of Cultural Property, Strengthening of International Humanitarian Law

The General Assembly would call upon States to become parties to the two Protocols Additional to the Geneva Conventions of 1949 relating to the protection of victims of armed conflicts, by the terms of a draft resolution approved by the Sixth Committee (Legal), today at the first of two meetings devoted to the further examination of the International Law Commission’s annual report, including three new topics.

By other provisions of the text approved on the Status of the Protocols Additional to the Geneva Conventions of 1949, the Assembly would call on States to become parties to other relevant instruments, including the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts.

It would reaffirm the need for making the implementation of international humanitarian law more effective, and would call upon States to consider becoming parties to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two Protocols.

Earlier at the morning meeting, the Committee concluded its consideration of the two chapters of the International Law Commission report covering responsibility of international organizations and shared natural resources.

A number of delegations welcomed work on the topic of responsibility of international organizations with the representative of the Russian Federation saying it was of great practical importance.  Her delegation supported the general approach of the Commission, by which an action of an international organization was considered to be that of its organ or an agent in the performance of their functions.

On the topic of shared natural resources, Kenya’s representative stressed the need for the elaboration of an international legal framework to guide the use, allocation, preservation and management of transboundary groundwaters.  The Commission should examine the principles of the 1997 Convention on Non-navigational Uses of International Watercourses and determine whether they were suited to non-renewable underground water resources.  A comprehensive study of State practice might be useful for future work on the topic.

The representative of New Zealand said although many of the principles of the 1997 Convention would seem to be relevant to the transboundary aquifers, there was a question on whether the principles and rules relating to the latter should place a greater emphasis on environmental protection and prevention of pollution.

Statements were also made by the representatives of Malaysia, Paraguay, Republic of Korea, Peru, Cuba, Mexico, Jordan, Venezuela and Greece.

The Chairman of the International Law Commission, Teodor Viorel Melescanu (Romania) introduced three more topics from the Commission’s 2004 report for debate, namely, unilateral acts of States; reservations to treaties; and fragmentation of international law:  difficulties arising from the diversification and expansion of international law.

He said an open-ended working group had been established to collect and examine a sampling of unilateral acts along a grid of elements:  date; author/organ; competence of author/organ; form; content; context and circumstances; aim; addressees; reactions of addressees and reactions of third parties.  The studies would be forwarded to the special rapporteur and they would be included in his next report.

On fragmentation, he said four other aspects of the issue had been identified for future work:  study on the application of successive treaties relating to the same subject matter; study on the modification of multilateral treaties between certain parties only; interpretation of treaties in light of relevant rules of international law applicable in relations between the parties in context of general developments in international law and concerns of the international community; and hierarchy in international law.

Speaking for the Nordic Countries, Sweden’s representative said the International Law Commission had met with the Human Rights Commission’s Subcommission on promotion and protection of human rights with regard to the Subcommission’s working paper on determining the compatibility of a reservation with the object and purpose of a human rights treaty.  The conclusion on the legal effects of reservations incompatible with the object and purpose of a treaty was one of two possibilities:  either the reserving State did not become a party to the human rights treaty in question, or it became a party without benefit of the reservation.  The issue of incompatibility with the object and purpose of a treaty was one of the most important aspects of reservations.  It should be treated with priority.

The representative of Germany said the emerging agreement on definition issues should be a basis for tackling more substantial questions in the near future.  The most crucial of them centred on possible consequences of reservations and objections, in particular those stemming from reservations made contrary to the exceptions laid down in some provisions of article 19 of the Vienna Convention on the Law of Treaties.

France’s representative said there should be a guideline on the objection to the late formulation of reservations.  The guidelines overall were particularly useful in providing a definition of objectives, and they made clear the distinction between two types of reservations.

Speaking on fragmentation of international law, the representative of the United States said it was a particularly broad and theoretical topic that did not lend itself to the development of draft articles or even draft guidelines.  A more useful product might be an expository study to inform governments and other institutions on possible approaches for dealing with the topic.

The representative of Portugal on the other hand, said her delegation welcomed the innovative way the Commission was dealing with the question of fragmentation as well as the choice of new subjects for study.  The role of the Commission should not be limited to drafting conventions but it should explore new avenues and working methods that might also contribute significantly to the progressive development of international law.

The representative of Nepal said Member States should revisit the question of honoraria for members of the Commission and ensure that the research work of its special rapporteurs , particularly those from developing countries, was not adversely affected because of cuts in budget.

Also speaking on those topics were the representatives of China, Canada, Austria, Spain, Poland, Guatemala, Brazil, Italy, Iran and New Zealand.

At the afternoon meeting, the Committee heard the introduction by the representative of Egypt of a draft resolution on the report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization.

Ukraine’s representative introduced a draft on the implementation of the Charter provisions related to assisting third countries affected by sanctions. 

The Committee will meet again at 9:30 a.m. tomorrow, Tuesday, 9 November to continue its debate on the International Law Commission on its 2004 report.

Background

The Sixth Committee (Legal), in two scheduled meetings, was today to conclude debate on two topics in the report of the International Law Commission, take up three new ones, and then act on two draft resolutions dealing, respectively, with a convention on civilians in armed conflicts and judicial immunities of States and their property.

In the afternoon, the Committee was expected to hear the introduction of two draft resolutions on its agenda item:  “report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization”.

Following the conclusion of the debate on the responsibility of international organizations and on shared natural resources, the Committee was to take up the new topics of unilateral acts of States; reservations to treaties and fragmentation of international law:  difficulties arising from the diversification and expansion of international law.

Unilateral Acts of States

At its fifty-sixth session, the International Law Commission considered the seventh report of its special rapporteur on the topic which dealt with a survey of State practice in respect of unilateral acts.  A working group on unilateral acts of States was reconstituted and its work focused on the detailed consideration of specific examples of unilateral acts.

During the Commission’s session, according to its report, some members said they were not convinced that the topic should be the subject of draft articles. One point of view was that the Commission should select certain aspects on which to carry out studies explaining State practice and the applicable law.

The special rapporteur said the debate had once again highlighted the complexity of the subject and the difficulties involved in the codification and progressive development of rules applicable to unilateral acts.  Irrespective of the final form the work would take, the topic warranted in-depth consideration in view of its growing importance in international relations.

Reservations to Treaties

The Commission adopted five draft guidelines dealing with widening of the scope of a reservation, modification and withdrawal on interpretative declarations.  The Commission also considered its special rapporteur’s ninth report and referred two draft guidelines dealing with the “definition of objections to reservations”, as well as, “objection to late formulation or widening of the scope of reservation”, to its drafting committee.

Fragmentation of International Law

The Commission reconstituted a study group on the topic which affirmed its mandate to study both the positive and negative aspects of fragmentation as an expression of diversification and expansion of international law.  While some members of the Study Group saw the elaboration of guidelines, with commentaries, as the desired goal, others were sceptical of aiming for a normative direction.

The Study Group confirmed that its intention was to develop a substantive, collective document as the outcome of its work, to be submitted to the Commission in 2006.  It would consist of two parts:  a substantive study of the topic of fragmentation of international law, as well as a summary containing the proposed conclusions, and if appropriate, guidelines on how to deal with fragmentation.

The Committee was next to take action on two draft resolutions.  By the terms of the text on the Status of the Protocols Additional to the Geneva Conventions of 1949 relating to the protection of victims of armed conflicts (document A/C.6/59/L.13), the General Assembly would call upon States to become parties to Additional Protocols and to other relevant instruments.

The Assembly would reaffirm the need for making the implementation of international humanitarian law more effective, and would call upon States to consider becoming parties to the Optional Protocol to the Convention on the Rights of the Child concerning the involvement of children in armed conflict.  Finally, the Assembly would decide to consider the item at its sixty-first session in 2006.

By the provisions of the second text, United Nations Convention on jurisdictional immunities of States and their property (document A/C.6/59/L.16), the Assembly would adopt the Convention, which is annexed to the draft resolution, and request the Secretary-General as depositary to open it for signature.  States would be invited to become parties to the Convention.

By the text, the Assembly would agree with the general understanding (annexed to the Convention) reached in the Ad Hoc Committee on Jurisdictional Immunities of States and Their Property, regarding certain provisions of the Convention.  The Ad Hoc Committee finalized the instrument whose draft articles were elaborated by the International Law Commission with commentaries.

The Assembly would express its deep appreciation to the Commission and the Ad Hoc Committee for their valuable work on the law of jurisdictional immunities of States and their property.

The 33-articles Convention applies to the immunity of a State and its property from the jurisdiction of the courts of another State.  The Convention is without prejudice to privileges and immunities enjoyed by a State under international law in relation to the exercise of the functions of its diplomatic missions, consular posts, special missions, missions to international organizations or to international conferences, and persons connected with them.

The Convention shall be open for signature on 17 January 2005 until 17 January 2007.  It will enter into force on the thirtieth day following the date of deposit of the thirtieth instrument of ratification, acceptance, approval or accession with the United Nations Secretary-General.

Special Committee of the Charter Texts

Draft resolution A/C.6/59/L.17 covers the report of the Special Committee on the Charter and on the Strengthening of the Role of the Organization (Text to be made available).

The terms of the text on implementation of the provisions of the Charter of the United Nations related to assistance to third States affected by the application of sanctions (document A/C.6/59/L.18), would have the Assembly renew its invitation to the Security Council to consider establishing appropriate further mechanisms or procedures for consulting with them as early as possible under Article 50 of the United Nations Charter.

The Assembly would strongly recommend that the Council continue its efforts to enhance further the effectiveness and transparency of the sanctions committees, to streamline their working procedures and to facilitate access to them by representatives of third States affected by the application of sanctions.  Where economic sanctions had had severe effects on third States, the Security Council would be invited to request the Secretary-General to consider appointing a special representative or dispatching fact-finding missions to assess the situation and identify appropriate assistance.

The draft text would reaffirm the important role of the General Assembly, the Economic and Social Council and the Committee for Programme and Coordination in mobilizing and monitoring the economic assistance efforts of the international community and the United Nations system on behalf of the third States affected by sanctions, and in identifying solutions to their special economic problems.  The Economic and Social Council would be asked to consider the issue at its 2005 session.

Statements on Responsibility and Shared Resources

PEH SUAN YONG (Malaysia) said the draft articles on responsibility of international organizations were timely and the recent changes improved the text.  Further clarifications should be made to phrases such as “other entities” in the draft article on the use of terms.  The article dealing with conduct exceeding authority should be reconsidered.  It would be unjust to attribute the conduct of organs or agents to international organizations when the conduct exceeded the authority or when the conduct contravened the organization’s instructions.

Further, he said the new terminology in the articles on shared natural resources showed sensitivity to important considerations such as the implications of “shared” and “groundwater”.  The term “aquifer” should be defined to mean a permeable water-bearing rock formation composed of sand, gravel or soil, which was capable of yielding exploitable quantities of water.  “Aquifer system” should be defined to indicate that the aquifers were hydraulically connected.  Significant harm should be further defined.  Exchange of data and information between aquifer system States should be subject to considerations of national interest, including security.

ELADIO LOIZAGA (Paraguay), speaking on shared natural resources reiterated his country’s support for the principle of permanent sovereignty of a State over its natural resources as declared by the General Assembly.  He said the Southern Common Market (MERCOSUR) Member States had created a high-level group to elaborate a draft agreement covering the Garani Aquifer which they shared.  The agreement included conditions for monitoring of the aquifer.  The resources belonged to the State under whose territory the groundwater passed.  The project, lasting four years, would help the MERCUSOR Member States to understand the benefits of the aquifer.  The information garnered could be helpful in the drafting of instruments on transboundary groundwater sources.

JENNIFER MCIVER (New Zealand) said the Commission should not go too deeply into the question of breaches of obligations that an international organization might have to its MemberStates or agents under the rules of the organization.  Her delegation had some concerns about “necessity”, as a ground that might be invoked by a State for precluding the wrongfulness of an act that would otherwise be contrary to international law as provided for in article 25 on State responsibility.

On shared natural resources, she said her delegation continued to support the approach of the special rapporteur in ensuring that his own work and the Commission’s consideration of it was supported by appropriate briefings from the scientific and technical experts.  Although many of the principles of the 1997 Convention on the Non-navigable Uses of International Watercourses would seem to be relevant to the transboundary aquifers there was a question whether the principles and rules relating to the latter should place a greater emphasis on environmental protection and prevention of pollution.

HUH JUNG-AE (Republic of Korea) said the article on the rules of an organization in the text on responsibility should be further clarified so that the term “other acts” was more exact.  The article on attribution should reflect recent jurisprudence with regard to the phrase “effective control”.  In particular, the International Criminal Tribunal for the Former Yugoslavia had held that the overall control test did not necessarily include the requirement that a State give specific orders for specific acts, but it did include a State supervising and planning acts by an agent or organization.  The article should be reconsidered and the test of control should be pivotal in resolving the question of attribution.  Two separate provisions should be formulated based on the threshold of control that an organization exercised over a State’s organ, one setting out the attribution of an organ’s acts to an organization and the other to a State.

YELLA ZANELLI (Peru), on the subject of shared natural resources, said she approved of replacing the term “shared” with “transboundary”.  It reaffirmed the sovereign right of States to the resources beneath their surface territory.  The text should take the form of guidelines that could serve as the basis for regional agreements.  On the subject of other decisions, the planned theme of obligation to extradite was an important issue for the rule of law and the struggle against impunity.

MARIA ZABOLOTSKAYA (Russian Federation) said the topic of responsibility of international organizations was of great practical importance.  His delegation supported the general approach of the Commission according to which conduct of an international organization was considered to be conduct of its organ or an agent in the performance of their functions.  It was based on a well-known decision of the International Court of Justice in determining compensation of damage caused by injuries suffered while on duty for the United Nations in 1949.  It was important that the criteria of an effective control be included in draft article 5.

Her delegation saw no reason for the exclusion from the scope of the draft articles of a question of international legal responsibility of an international organization in respect of its members and possibly of agents.  At the same time, it saw no necessity for the formulation of special provisions relating to that question.  It believed that it was not feasible “a priori” to rule out a possibility that an international organization might make reference to “necessity” as to a circumstance excluding a wrongful act.

With regard to the case when a wrongful conduct of a MemberState was authorized by an international organization, including “post factum”, in her delegation’s view that was also one of the reasons for joint responsibility of an international organization and a MemberState.

MERCEDES DE ARMAS GARCÍA (Cuba) said her country would in due course present written comments on the draft articles on the responsibility of international organizations.  The Commission should not depart from provisions in the 1986 Vienna Convention on the Law of Treaties regarding the responsibility of international organizations.  It would be moving into an area not comparable with international law if it did so.

She said she believed article 45 of the text on responsibility of States could provide good foundation.  She also believed in principle that an international organization must be held responsible for illegal acts committed by one or more of its members.  In the event that an illegal act was merely authorized by the organization, the purpose would have to be studied to determine whether it was properly authorized.  She underscored the importance of the draft articles and would await the next report on the subject.

ALEJANDRO RODILES BRETÓN (Mexico) said he agreed with the approach of the text on organization responsibility, following that on State responsibility.  Some terms should be clarified.  “Effective control” was the most objective criterion for attribution even if more complex exceptions arose since they could be addressed in practice.  On the question of violations of obligations, international law should be considered independently of an organization’s internal regulations.  The circumstances that would allow for the claim of “necessity” should be further considered.  The article on attribution should be re-worded to clarify State and organization responsibility.

On shared natural resources and transboundary groundwater, he said there should be a future instrument on the important issue related to sustainable development.  There should be a further detailed study of this question, and the subject of hydrocarbons and gas resources should be left for later.  His country had adopted a new water law that set out the mechanisms for better water use.  The 1997 watercourse Convention could serve as the basis for the transboundary text.  The general framework provided by the Special Rapporteur was a good starting point.  The principles governing the aquifers must include provisions on “equitable use” and sustainable use.  The obligation to cause no harm should be included in the prevention article, and the consequences of non-compliance should be covered.  On the general obligation to cooperate, and the exchange of information, he said consideration should be given to the level of development of States.

MAHMOUD HMOUD (Jordan) said the draft articles on the responsibility of organizations addressed an area where there was less legislative guidance than with regard to State responsibility.  The approach was welcome.  An explicit provision should be included to bar the possibility of multiple attributions in future interpretations.  For the purposes of attribution, a factual test rather than an “official status” test should be applied to provide that the rules of an organization were not exclusive in determining the functions of its organ or agent.  The factual test should apply not only to conduct but also whether the organ or agent had been placed under the disposal of the organization.  The commentary confused the issue of “under the command” with “effective control”.

Further, he said, attribution in a situation of joint operation had not been addressed.  The text on exceeding of responsibility was confusing because it dealt with the distinction between on-duty and off-duty conduct.  There was no useful reason for attributing an action to an organization that acknowledged or adopted conduct as its own, and there was no jurisprudence or practice to support the approach taken in the article dealing with the question.  Assuming responsibility was different from attribution.

MIRNA MASYRUBI (Venezuela) said her delegation agreed with the special rapporteur that the term “shared natural resources” should not be used.  Its use could create problems.  She insisted on its exclusion from the text, and reiterated the need for a precise term.

KAREN ODABA-MOSOTI (Kenya) said her delegation was convinced of the need for an elaboration of an international legal framework to guide the use, allocation, preservation and management of transboundary groundwaters.  She said that a critical consideration should be given to the management and sharing of confined aquifers.  The Commission’s approach should be informed by the non-renewable nature of such aquifers.  It might be worth examining whether the principles of the 1997 Convention on Non-navigational Uses of International Watercourses were suited to non-renewable underground water resources, or whether those aquifers should be governed by a regime akin to other depletable shared natural resources such as oil or natural gas.

In view of the delicate nature of the subject, she said, a comprehensive study of State practice might be a useful point of reference in future work.  She encouraged the Commission’s continued efforts in addressing the subject.  She expected that the outcome might take the form of a framework document or guiding principles that would enable States to elaborate more specific national and regional arrangements.

MARIA VONDINAKI-TALALIAN (Greece) said she welcomed the text on responsibility of organizations, including the definition of the term “agent of an international organization” for the purposes of attribution.  The Commission should consider the question of breach of obligations by an international organization towards its member states.  The issue of violating an organization’s rules with respect to its agents merited further consideration and a nuanced approach.  Necessity as a circumstance precluding wrongfulness should not be included now, due to lack of relevant practice.  Attribution of responsibility required further clarification.

On reservations to treaties, she noted the difficulty of defining objections and said it should be drafted in a general manner so as to cover the broad range of cases to which the text would apply.  The definition would include a provision on the intention of objecting States to consider a treaty binding, in its entirety, on a reserving State.  Severing reservations that were incompatible with the objective and purpose of a treaty did not violate the convention on the law of treaties, since the freedom of States to make reservations was explicitly limited in the convention.  That question, along with the application of the Vienna Convention to the acceptance of reservations and objections to them, should be the core of the Commission’s work.

Introduction of New Topics

The Chairman of the International Law Commission, Teodor Viorel Melescanu (Romania), introduced the new chapters in the Commission’s report:  chapter VIII, unilateral acts of States; chapter IX, reservations to treaties; and chapter X, fragmentation of international law.

On “unilateral acts”, he said the Special Rapporteur, Victor Rodriguez Cedeno (Venezuela) had focused on State practice in his seventh report.  It dealt with acts and declarations producing legal effects.  Three generally established categories were used to determine the criteria for classifying them:  acts by which a State assumed an obligation in the form of promise and recognition; acts by which a State waived a right in the form of a waiver; and acts by which a State reaffirmed a right through protest.  Although notification was formally a unilateral act, it produced effects related to the situation of promise, waiver or protest, including in the context of treaty regimes.

Continuing, he said the report had set out examples of State practice but more consideration would have to be given to determining whether any generally applicable rules had emerged.  The evolution, lifespan and validity of the acts identified as unilateral by the above criteria would be the subject of the next report.  The will of the State to commit itself must be determined to settle the question about the nature of a declaration, act or conduct, which called for an interpretation based on restrictive criteria.  Unilateral acts were a form of creating international law.  A more in-depth study of practice could be conducted by looking into issues such as author, form, subject, reaction and subsequent evolution of the action.  Also, specific aspects of the question could be studied, as derived from court decisions and arbitral awards.

Finally, he said, an open ended working group had been established to collect and examine a sampling of unilateral acts along a grid of elements:  date; author/organ; competence of author/organ; form; content; context and circumstances; aim; addressees; reactions of addressees; and reactions of third parties.  The studies would be forwarded to the Special Rapporteur and they would be included in his next report.

Taking up “reservations to treaties”, he said the ninth report of the Special Rapporteur, Alain Pellet (France) was focused on definition of objections, which must be centred on the effects intended by the authors.  The questions of when objections could be formulated and the categories of States or organizations able to make objections were both matters of great sensitivity.

He said the scope of the draft guidelines had been broadened to widen the scope of reservations.  It provided for the modification of an existing reservation to broaden it.  In the event of an objection, the initial reservation remained unchanged.  The provisions applying to late formulations should follow the same principle and it was essential that unanimous consent of all parties must be given for extending the scope of a reservation.  Late formulations should not be encouraged and the rules applying to late formulations were not easily transposed into rules for widening the scope.  The Commission had not defined the widening of the scope of a reservation but the commentary contained a definition.  An interpretative reservation could be modified at any time unless a treaty had a provision that it could be modified only at specific times.  The absence of a provision would allow for that.

Turning to “fragmentation of international law, he said the study group established last year had presented its first report and it intended to develop an outcome document on its work by 2006.   The group had considered the function and scope of the “lex specialis” rule and “self-contained regimes” from a systemic perspective, and concluded that general international law was an omnipresent given behind special rules and regimes.  Although there was no formal hierarchy between sources of international law, an informal hierarchy existed between them as an aspect of legal reasoning.  The “lex specialis” maxim was a technique of legal reasoning, either as an interpretative device or conflict resolution technique.  No strict or formal rules could be laid down for its use.  Much depended on the context and normative environment.  In some cases it was an application or elaboration of the general law, as an exception to it.  In other cases it was prohibited.  The aspect of the rule concerning regional regimes would be treated separately next year.

Continuing, he said a distinction would be made between the use of the maxim for derogation and for development of the law.  Self-contained regimes could be called special regimes, and while general law continued to operate within them, the relationship between the two could not be settled by general rules.  General rules could also not be provided for falling back onto the general rule in the event of a special regime failure.

Finally, he said four other aspects of the issue had been identified for future work:  study on the application of successive treaties relating to the same subject matter; study on the modification of multilateral treaties between certain parties only; interpretation of treaties in light of relevant rules of international law applicable in relations between the parties in context of general developments in international law and concerns of the international community; and hierarchy in international law.

Statements

DANIELA SCHLEGEL (Germany) said it was absolutely necessary for a clear distinction to be drawn between unilateral acts of States that constituted an expression of will or consent and those that had a legal effect.  It was equally essential that flexibility be retained for unlawful acts of a political nature.  Her delegation also shared the concern expressed by the Commission itself that the categories selected for the text were not very clearly defined.  She welcomed the efforts of the special rapporteur to establish three categories for unilateral acts of States -- namely, acts by which a State assumed obligations; acts by which a State waived a right; and acts by which it reaffirmed a right or a claim.  She called upon the Commission to develop a clear definition of unilateral acts of States that had a legal effect, while at the same ensuring that States were provided sufficient flexibility.

On the topic of reservation to treaties, she said the central question was whether a reservation demanded a reaction.  The emerging agreement on definition issues should be a basis on which to tackle more substantial questions in the near future.  The most crucial questions centred on possible consequences of reservations and objections, in particular those stemming from reservations made contrary to the exceptions laid down in some provisions of article 19 of the Vienna Convention on the Law of Treaties.  She believed the terms “validity” or “valid/invalid” should not be used to qualify such a reservation as they seemed close to the term “nullity” and thus would not have the desired effect of encouraging objections.

On fragmentation, she said States were progressively more willing to subject their bilateral and multilateral relations to an international legal framework.  To ensure stability and legal certainty in international relations, States needed practical guidelines on how to deal with the conflicts caused by fragmentation.  If it was not feasible to aim for a normative direction, substantive study on the topic combined with proposals on dealing with conflicts would be highly welcomed.

GUAN JIAN (China) said that since the topic of unilateral acts of States was linked in varying degrees with the Vienna Convention on the Law of Treaties in many aspects, provisions of a procedural nature, for example, on the interpretation, modification, suspension or termination of unilateral acts, could be modelled on that instrument, so that provisions relating to unilateral acts of States would be complete.  Any study or report on the topic should focus on the unilateral acts performed by States.  He noted that the special rapporteur had cited acts of non-State entities as acts of States, which was wrong.  The International Law Commission was obligated to observe the United Nations Charter and the relevant United Nations resolutions.  The mistake could not be justified in the name of academic freedom, he said, or independence of experts.

On reservations to treaties, he said it was unacceptable for a State objecting to a reservation to unilaterally claim the full applicability of a treaty between it and the reserving State.  The intention of both parties should be taken into account in elaborating a text on the issue.

DON MCRAE (Canada) said fragmentation of international law was a topic that reflected the need to come to terms with the diverse ways in which international law was developing, and for the anticipation of ways for reconciling conflicts that might arise between different branches of the law.  In that regard, he said the topics of “lex specialis” and self-contained regimes dealt with in the work of the study group of the Commission chairman highlighted some of the difficulties and complexities in that area of the law.  There was a fruitful avenue for deeper enquiry by the study group and the Commission.

On unilateral acts of States, he said the challenge for the special rapporteur on the topic and for the Commission was to determine what use could be made of the body of practice on the subject.  Although a distinction between “legal” and “political” acts might be helpful in some contexts, there were many instances where the categories of the legal and the political overlapped.  More distinct categories were needed.

The Commission must draw distinctions between acts in terms of their legal consequences.  The process of assigning unilateral acts to specific categories would provide a better understanding of the nature and import of the unilateral acts concerned, he said.

KONRAD BUHLER (Austria) said state practice with regard to his country had been misrepresented in the special rapporteur’s report on unilateral acts of states.  For example, the erroneous assumption was made that Austria had closed its airspace to military flights of the North Atlantic Treaty Organization (NATO) as a sign of protest against attacks carried out against Yugoslavia.  In fact, Austria had closed its airspace solely because of neutrality.

On reservations to treaties, he said the late formulations and the widening of scope of reservations were irreconcilable with the principle that a State could unilaterally reduce the scope of its obligations under a treaty by a reservation at any time.  Reservations regimes should be distinguished from later formulations.  The regimes of late formulations and widening the scope of reservations were particular ones and should not figure under the heading of reservations.  The text confused the rule and the exception.

With regard to reservations that were incompatible with the Vienna Convention on treaties, Austria held that there must be limits on unilateral definitions of obligations resulting from a treaty -- that by becoming party to a treaty a State had to abide by its core obligations; that a declaration incompatible with a treaty was invalid; and that a State making an impermissible reservation should not be allowed to benefit from breaching the Vienna Convention.  The only remedy to an impermissible reservation was a qualified objection.  A dialogue with the reserving State should be entered if it were not possible to determine whether a reservation was incompatible with the object and purpose of a treaty.

Action on Draft

The Committee took up the draft on the status of protocols additional to the Geneva Conventions (document A/C.6/59/L.13).

The draft was adopted without a vote and with no explanation of position before or after action.

Additional Draft

When the Committee met again this afternoon, it had before it an additional draft resolution on the report of the Special Committee on the Charter and on the Strengthening of the Role of the Organization (document A/C.6/59/L.17).  By it, the Assembly would decide that the Special Committee would hold its next session from 14 to 24 March 2005.  At that time, it would request the Special Committee to continue considering all proposals on maintaining international peace and security and to continue considering, as a priority, the implementation of Charter provisions relevant to protection of third States affected by sanctions.  The Special Committee would be asked to keep the peaceful settlement of disputes on its agenda, to consider proposals on the Trusteeship Council and to give priority to considering ways and means of improving its working methods.

Further by the draft, the Assembly would endorse the Secretary-General’s efforts to eliminate the backlog in publishing the Repertoire of the Practice of the Security Council and would request him to establish a trust fund to eliminate the backlog in the Repertory of Practice of United Nations Organs, while also requesting him to continue efforts toward making all versions of the Repertory available electronically.  It would request the Secretary-General to report on both the Repertory and Repertoire at the Assembly’s sixtieth session.

Statements

PATRICIA GALVAO TELES (Portugal) said her delegation continued to believe that the role played by unilateral acts of States was very rich and full of varied effects.  It had taken note of the grid that had been established to treat the survey of practice in a uniform and analytical way.  It agreed in general with the way the Commission was proceeding with its work on the topic and think that it should conclude its study soon.

On reservations to treaties, her delegation had doubts on the necessity for a definition of what constituted an objection to a reservation.  The Commission should continue to work on the practice of States, rather than try to codify a definition of “objection of reservation”.  The Vienna Convention on the Law of Treaties was sufficient in that regard, she said.

Her delegation welcomed the innovative way the Commission was dealing with the question of fragmentation, as well as the new choice of subjects made.  The role of the Commission should not be limited to drafting conventions but it should explore new avenues and working methods that might also contribute significantly to the progressive development of international law.

On other decisions and conclusions of the Commission, she said a topic the Commission could consider in the future was the conditions under which the international community as a whole and States would have a responsibility to protect cases of massive human rights violations as well as international humanitarian law.  Her delegation would like to see more interaction between the Commission and MemberStates, taking into account statements delivered in the Sixth Committee.

ERIC ROSAND (United States) said his delegation continued to have questions whether the topic of unilateral acts of States was suitable for codification or progressive development, and about whether it would ultimately be possible for the Commission to develop a final product that could have applications that were concrete and useful.

On reservations to treaties, his delegation was comfortable with the use of the concept of “validity” as a way to discuss formulation of reservations.  The use of the word “validity” might be the most appropriate way to address the issue.

With respect to the topic of fragmentation, he said the study group’s recent study on the function and scope of “lex specialis” and the question of self-contained regimes appeared very interesting.  His delegation looked forward to the results of the work on other aspects of the topic, for which preliminary outlines were presented.  Fragmentation was a particularly broad and theoretical topic that did not lend itself to the development of draft articles or even draft guidelines. A more useful product might be an expository study to inform governments and other institutions on possible approaches for dealing with those issues.

JERZY MAKAROWSKI (Sweden), speaking for the Nordic Countries, said the International Law Commission had met with the Human Rights Commission’s
Subcommission on promotion and protection of human rights, with regard to the Subcommission’s working paper on determining the compatibility of a reservation with the object and purpose of a human rights treaty.  The conclusion on the legal effects of reservations incompatible with the object and purpose of a treaty was one of two possibilities:  either the reserving State did not become a party to the human rights treaty in question, or it became a party without benefit of the reservation.  The issue of incompatibility with the object and purpose of a treaty was one of the most important aspects of reservations.  It should be treated with priority.

On the matter of objections, he said the new formulation widened the definition to include the so-called “super-maximum effect” of objections, also known as the “severability doctrine”.  While the Nordic countries strongly supported the new thrust, it was suggested that some flexibility be built into the definition.  The term “modify” should be removed from the definition, since it introduced a new element of objections.  In reality, the intention of an objection was not usually to modify the effects of the reservation.  Further, the definition should cover the situation where a State objected only to parts of a reservation by replacing the words “or modify” with “all or some of” in the definition of objections.  The most novel element of the “super-maximum” effect should not be lost.

BRIGITTE COLLET (France) said there should be a guideline on objections to the late formulation of reservations.  The guidelines overall were particularly useful in providing a definition of objectives and made clear the distinction between two types of reservations.  It should be kept in mind that a reservation sought to modify the terms of a treaty.  The definition should not refer to the super-maximum effect, where the objecting State made the effect of a reservation unopposable, with a validity that could not be challenged.

In proposing the appropriate terminology for an objection to a reservation, she said two notions should be kept in mind:  validity and opposability.  Validity was a legal phrase and was the foundation for juridical effects.  It was assessed by each State in its own way.  A reservation formulated in nonconformity with the Geneva Convention would be invalid.  The notion of opposability was a matter of international responsibility.  The terms “licit” and “illicit” should be avoided with regard to objections, since international responsibility was involved rather than a juridical act.  Using those terms could lead to confusion about the consequences of formulating a reservation relative to the Vienna Convention.

CONCEPCION ESCOBAR HERNANDEZ (Spain) said the topic of reservations to treaties was of key importance. The approach and methods chosen by the special rapporteur were positive.  She thanked the Commission for its provisional adoption of five new guidelines and associated commentaries.  Her delegation did not favour the use of “admissible” or “scope” for reservations; “admissible” reservations had highly procedural meaning, covering an assumption under which reservations could not be formulated.  It believed in the term “valid”, at least in its Spanish version.

On unilateral acts and fragmentation, she expressed appreciation for the intensive work done to date.  She said her delegation valued the work on fragmentation of international law and hoped the Commission would adopt a practical approach to it.

ANDRZEJ MAKAREWICZ (Poland) said his delegation accepted the draft guidelines provisionally adopted by the Commission.  They needed some additional elements, such as the moment when objections must or could be formulated.  The application of words/concepts such as “validity” or “lawfulness” in the context of article 19 of the Vienna Convention on the Law of Treaties had certain disadvantages.  Ineffective reservations were excluded from the ordinary procedure concerning reservations to treaties.  On fragmentation, he urged the Commission to proceed with caution.  He stressed the need for a study of both the positive and negative aspects of the question.

ROBERTO LAVALLE-VALDES (Guatemala) said, with regard to reservations to treaties, that the central point was not so much a question of withdrawing them as communicating about them.  The draft guidelines did not have a provision on communication of interpretative declarations and they should.  A conditional interpretative declaration produced the same results as a simple interpretative declaration, which was prohibited in multilateral treaties.  It was all right to include an article on simple interpretative declarations as long as there was no redundancy, but it was not a simple matter.

The work on unilateral acts had not progressed, he noted.  A single provision should be included on the definition.  It was difficult to achieve any consensus or even agreement on the elements involved.  The view had been expressed that the Commission should throw in the towel on the subject but consensus should be pursued, not just on the definition but on a list of actions to be included as a first priority.  The definition should not be defined by strict and binding criteria if that provided difficulty, but should rather just set out the promise, protest, recognition and reaction elements that had been identified.

SYDNEY LEON ROMEIRO (Brazil) said fragmentation of international law was a relevant topic, and he welcomed its examination by a study group of the Commission.  The approach adopted by the study group would help fill in the gaps in international law, he said.  His delegation hoped the final product would be in the form of draft articles.

IVO M.BRAGUGLIA (Italy) said it would be useful for the final work on unilateral acts of States to be presented to States in the form of draft articles. The Commission should continue in its current approach on such a complex topic.  On reservations to treaties, he said the Commission should approach the questions that the Vienna Convention on the Law of Treaties was not able to resolve.  There were varieties of terminology for reservations to treaties.  The choice was not an easy one.  He hoped the Commission would adopt a broad definition of reservations.

He said he welcomed the progress made on the study of fragmentation of international law.  The approach adopted by the Commission’s study group was acceptable.  It would be desirable that the Commission, in continuing with the project, kept in mind the need for a final product that would generate an acceptable outcome.

MOSTAFA DOLATYAR (Iran), speaking on reservations to treaties, said the definition of an objection should be clarified before the Commission deliberated on its legal effects.  The definition could be revised when the effects of objections were appropriately formulated.  The term “objection” should be defined in the light of established principles of international law, including the principle of sovereignty of States.  Only parties to a treaty were entitled to formulate objection to reservations made to that treaty.  A signatory could be entitled to object to reservations which it deemed as contrary to the objective and purpose of that treaty.

JENNIFER McIVER (New Zealand, said with regard to fragmentation that the study group had supported the conclusion of general international law, functioning in an omnipresent manner behind special rules and regimes so that no special rules could be isolated from general international law, making the term “self-contained regime” a misnomer.  That was significant because it established that the emergence of special treaty regimes in areas such as trade, human rights and the environment did not mean that the international legal system was losing coherence and was in crisis.  It also pointed the way towards techniques for dealing with apparently conflicting rules in a situation, particularly by emphasizing the importance of the Vienna Convention on treaties and its rules for interpreting and reconciling conflicting norms.  That brought up the fundamental point that treaties were a product of international law and derived their legitimacy from an international legal system.  They required interpretation against the background of general international law.

SHARADA PRASAD PANDIT (Nepal), speaking on the report as a whole, said the progressive development of international law and its codification would greatly contribute to promoting cooperation among States in a globalized world.  Welcoming the adoption of the 19 draft articles on diplomatic protection, he also welcomed the International Law Commission’s plan to deal with the issue of the clean hands doctrine on the claimant.  He said a good balance had been struck between the responsibility of State and operator in the text on international liability.

Reviewing the remainder of the report and welcoming its conclusions, he said Member States should revisit the question of honoraria and ensure that the research of special rapporteurs was not adversely affected by budget cuts, particularly in the case of developing-country members.  The Commission should also make efforts to make technical assistance available to develop national capacity for submitting information in response to the Commission’s queries.

Introduction of Drafts

Egypt introduced the draft on the report of the Special Committee on the Charter (document A/C.6/59/L.17).

Ukraine introduced the draft on implementation of provision of the Charter related to assisting third States affected by sanctions (document A/C.6/59/L.17).

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