Fifty-ninth General Assembly

Sixth Committee

25^th Meeting (AM)

Legal Committee seeks Assembly adoption of United Nations

 

Convention on Jurisdictional immunities of States

 

Action Taken as Debate Ends on International Law Commission Report;

Reservations to Treaties, Unilateral Acts of States among Other Issues

The General Assembly would adopt a United Nations Convention on jurisdictional immunities of States and their property, and invite States to become parties to it, by a draft resolution approved without a vote by the Sixth Committee (Legal) this morning, as the Committee concluded the debate on the report of the International Law Commission on its two-part 2004 session (Geneva
3 May to 4 June and 5 July to 6 August).

The 33-article United Nations Convention, annexed to the draft resolution, applies to the immunity of a State and its property from the jurisdiction of the courts of another State.  The Convention would be open for signature on 17 January 2005 until 17 January 2007.  It would 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.

The International Law Commission took up the study of the law of jurisdictional immunities of States and their property with a view to its progressive development and codification on the recommendation of the Assembly’s resolution 32/151 of 19 December 1977.  In 1991, the Commission submitted a final set of draft articles, with commentaries, which was finalized this year as a draft convention by the ad hoc committee on the topic.

The Assembly would agree with the general understanding (annexed to the Convention) reached in the ad hoc committee regarding certain provisions of the Convention, in particular, that the instrument did not cover criminal proceedings.

On the International Law Commission’s report, the issue of reservations to treaties was one of three final subjects discussed this morning.  Delegations agreed that the Vienna Convention on the Law of Treaties defined a permissible reservation as one that did not violate the object and purpose of a treaty.

Malaysia’s representative said objections to “impermissible” reservations should be encouraged.  However, the Committee should introduce a formulation stating that impermissible reservations were of no force, even when no objection had been made.

Pakistan’s representative said the rules of the Vienna Convention on the Law of Treaties were flexible and should not be tampered with.  Human rights treaties were the same as others.  Reservations should be allowed to maintain their value and universality.  The treaty regime, including reservations, should aim for acceptance.  The articles should take the form of guidelines.

On the subject of unilateral acts of States, many delegations noted the difficulty of setting criteria in determining the legal and political aspects of such acts.  Australia’s representative commended the work done and agreed that the definition of the act, which brought with it a legal obligation, must be examined closely.

On the question of transboundary groundwaters or aquifer systems, delegations called for flexibility in the form the principles would take.  India’s representative said States must be able to tailor agreements or arrangements to suite individual circumstances.  Context-specific agreements and arrangements were the best way to address the questions involved.

Speaking on fragmentation of international law, Japan’s delegate said that the dramatic increase in the number of bilateral and multilateral treaties in recent years was making it difficult to maintain coherence among the different legal regimes.  The topic provided a good opportunity to reflect on the relations among different areas of international law.

The representative of the Republic of Korea said the topic was highly theoretical in nature.  However, the Commission’s study group would produce work that would be of practical use for States in their future legal activities.

Sierra Leone’s representative said the Commission would provide a great service by proposing guiding principles for law-making.  He also called for the Commission to consider elaborating a code of conduct for counsellors to the International Court of Justice, similar to that of national bars.

Statements were also made by the representatives of Belgium, Romania, Singapore, the Russian Federation and Mexico.

Also this morning, the representative of Trinidad and Tobago introduced a draft resolution on the responsibility of States for internationally wrongful acts.

The Committee will meet again at 10 a.m. on Wednesday, 17 November, to take up the report of the Committee on Relations with the Host Country.

Background

The Sixth Committee (Legal) met this morning to continue its debate on the International Law Commission’s report with a focus on chapters related to unilateral acts of States, reservations to treaties and fragmentation of international law:  difficulties arising from the diversification and expansion of international law.  (For background on the report, see Press Release GA/L/3263 of 1 November.  For background on the chapters under discussion, see Press Release GA/L/3267 of 8 November.)

The Committee has before it the Commission’s report on its fifty-ninth session (Geneva, 3 May to 4 June and 6 July to 6 August) (document A/59/10).

Also before the Committee is a draft resolution on the convention on jurisdictional immunities of States and their property (document A/C.6/59/L.16).  The topic was debated on 25 and 26 October (see Press Releases GA/L/3259 and GA/L/3260 of those dates).  By the draft, the Assembly would agree with the general understanding reached in the Ad Hoc Committee on the matter that the convention did not cover criminal proceedings.  It would then adopt the six-part convention contained in the resolution as an annex.

Part I of the text is the introduction, dealing with the scope, use of terms, privileges and immunities not affected and non-retroactivity.  Part II on general principles treats the issues of immunity, modalities, express consent, participation in a court proceeding and counterclaims.  Part III, on proceedings in which State immunity cannot be invoked, covers commercial transactions, contracts of employment, personal injuries and damage to property, ownership, possession and use of property, intellectual and industrial property, participation in companies and collective bodies, ships and arbitration agreements.

Part IV, on immunity from measures of constraint before a court, deals with pre- and post-judgement measures of constraint, effect of consent to jurisdiction and specific categories of property.  Part V on miscellaneous provisions covers service of process, default judgement and privileges and immunities during court proceedings.  Part VI, final clauses, covers the relationship of the convention to other agreements, dispute settlement and the ratification process.  An annex to the convention covers understandings with respect to certain provisions.

Statements

KOICHI HASEGAWA (Japan) speaking on fragmentation of international law, said his Government continued to pay close attention to that very ambitious topic.  As the number of bilateral and multilateral treaties had increased dramatically in recent years in various areas, including trade, the environment, development, human rights and humanitarian issues, it was becoming more and more difficult to maintain coherence among the different legal regimes.

To avoid conflicts of law during the treaty-making process, as well as in interpretation, it was essential for practitioners to have a clear understanding of the potential impact of a particular treaty on the other related rules of international law.  Japan believed that the topic of fragmentation provided a good opportunity for reflection on the relations among different areas of international law, and basically supported the current direction that the International Law Commission was taking.  On the selection of topics for study by the Commission, he said the Commission should be careful in applying such guiding principles drawn from a few specific cases or areas, since they might be relevant only in certain specific settings.

On unilateral acts of States, he said the research on the topic must take into account not only the objective elements of the acts themselves, but also the subjective elements such as the will and the intent of the States in question.  He also spoke on the question of reservations to treaties, noting that it was time for the Commission to take steps to hasten discussion on the key issues, such as the legal consequences of the topic, and set a timeline for completion of the work on it.

BIKRAM KESARI DEO (India) advised the Commission to avoid developing rules for international organizations that mirrored the rules set out with respect to States in the draft articles on State responsibility.  On shared natural resources, he said India had consistently maintained that context-specific agreements and arrangements were the best way to address questions relating to transboundary groundwaters or aquifer systems.  That would also enable States concerned to take appropriate account of the various relevant factors in any specific negotiation.  On the question of the final form of the topic, he said he favoured a form that gave States appropriate flexibility to tailor agreements or arrangements to suit individual circumstances.

The study of fragmentation should ensure the strengthening of a stable international legal system, he said.  In his delegation’s view, problems and conflicts of fragmentation should serve to enhance the effectiveness of international law.  The main focus of the study should be on the substantive aspects, rather than institutional facets of fragmentation.  The study should capture State practice and jurisprudence developed by national and international judicial bodies.

MARC PECSTEEN (Belgium) said he would address the Commission’s request for comments on the terminology to be used in qualifying reservations, relative to the conditions set out in the Geneva Convention on treaties.  The test was whether the reservation was compatible with the object and purpose of the treaty, in other words whether it was valid.  Normally a legal effect was either null, illegal or invalid.  But here, if the reservation was contrary to the treaty’s intent, the reservation was null.  For a reservation to be valid, all conditions for validity had to be met.  Reservations made after acceptance of a treaty were invalid, and written formulation was an element of validity for all reservations.

He said a systematic set of rules for establishing nullity was not necessary, but the general premise should be that reservation was considered null when it was contrary to compatibility with the treaty’s intent.  It was acceptable as long as the treaty had not been denounced.  Other than that, it was not appropriate to distinguish between reservations related to the conditions set out in the Vienna Convention and other cases.

COSMIN ONISII (Romania) said he welcomed the four new draft articles on the responsibility of international organizations, particularly the use of the word “agent” to replace the previous designation, and the redefinition of an organization’s rules through the addition of the words, “other acts taken by the organization”.  However, those changes should be introduced in the second article on terms, since they appeared elsewhere in the draft article.  His country would submit detailed commentary later.

On shared natural resources, he said the final instrument, which was still under consideration, should clearly set out its applicability:  the uses of transboundary aquifers, the activities impacting on them and measures to protect, preserve and manage them.  The primary purpose of the instrument would be to establish the proper use of those systems.  The draft articles should reflect the cooperation between States that would be essential for the equitable and rational use of the natural resource.

Finally, he said, he hoped the difficulties regarding unilateral acts of States would be overcome.  Elaborating a set of principles with regard to the issue was important because they represented a source of legal norms.

NG HWEI MIN (Singapore) said the subject of reservations to treaties was a matter of profound practical significance.  While it was essential not to encourage late formulation of limitations on the application of a treaty, there could be legitimate reasons why a State would wish to modify an earlier reservation.  Prevailing practice should be taken into account.  The commentaries provided examples that were a useful reference in illustrating the principles set out in the Guide to Practice.

The question of “validity” of reservations would be treated next, she noted.  With regard to the related issue of the effect of reservations, she said the Vienna treaty Convention had set out the guidelines.  While a State could not accept a reservation prohibited by a treaty, reservations could be permissible under certain conditions.  The contractual character and voluntary nature of treaty agreements served as the fundamental basis for treaty relations.  Any rule that would bind a State against its will was unacceptable, as was the position of an objecting State that the treaty as a whole was binding on the reserving State, despite its reservation.  The International Court of Justice had said a State was a party to a Convention even if objections had been made by others, as long as the reservation was compatible with the object and purpose of the Convention.

Some could argue that this opinion would lead to a complex legal web, she said.  On the other hand, the clarified position would contribute to greater participation and universality for treaties.  It would also give greater stability to the treaty regime.  If a reservation were challenged by an objecting State, for failing the test of compatibility with the object and purpose of the treaty, the reserving State should reconsider the objection in good faith and decide on a course of action.

MARIA V. ZABOLOTSKAYA (Russian Federation) said support should be given to certain formulations of the provisions in the draft articles on reservations to treaties such as “widening of scope of reservation”, “modification of an interpretative declaration” and “withdrawal of an interpretative declaration”.  Her delegation had certain questions with regard to a provision of the “guidelines” on limitation and widening of the scope of a conditional interpretative declaration.

She said her delegation also considered that the definition of the “objection to reservation” should be structured and complemented with commentaries in such a way that a clear distinction could be made between legal objections to a reservation, and political declarations used by States to express negative attitude to a reservation, but which had no legal repercussions.  In addition, she said, definition of an objection to a reservation should not draw only on consequences of an objection directly provided for by the 1969 Vienna Convention.

On unilateral acts of States, she said the content of the report of the special rapporteur on the topic showed a broad variety and heterogeneity of those acts, and showed why the Commission, until now, had not succeeded in advancing in its work on the subject.  The Commission’s decision to focus on the analysis of a certain set of unilateral acts was aimed at analyzing their form, content, procedure and other circumstances of accomplishment.  On the whole, it was her delegation’s opinion that there were certain indications to prove that codification was an extremely complicated and hardly possible task.

On fragmentation of international law, she said her delegation shared the opinion of the research group on the topic that the hierarchy of rules in international law did not, as a rule, result in its fragmentation, but on the contrary, served as an inalienable attribute of its integrity as a system and of its internal structure.

HUH JUNG-AE (Republic of Korea) said her delegation believed that further guidance from the Commission as to the scope and definition of unilateral acts of States was essential to facilitate the submission of comments by States.  There was also uncertainty on the normative status of the concept of unilateral acts of States in international law.  Turning to the topic of reservations to treaties, her delegation believed that future work of the Commission relating to articles of the Vienna Convention on the Law of Treaties should be based on case law.

She said the topic of fragmentation was highly theoretical in nature.  However, her delegation anticipated that the work of the Commission’s study group would be of a practical use for States in their future legal activities.

PEH SUAN YONG (Malaysia) said he wanted the Commission to further clarify and elaborate on the comments it expected from States in relation to the elements set out in the Working Group’s recommendation regarding unilateral acts.  Also, the special rapporteur’s report lacked an in-depth analysis of State practice; the criteria for classifying unilateral acts by promise or recognition, waiver and protest could overlap, and were therefore unsuitable.  States must know when a unilateral expression of their will or intention shall be taken to be legally binding commitments or mere political statements.  The nature of the act must be taken into account along with context, content and form.  A study of revocability should be conducted and formulation of any legal rules should await the comprehensive analysis of State practice.

On the question of reservations, he said a reservation contrary to the object and purpose of a treaty was ineffective or null and void.  It would not produce the result intended by a reserving State.  But the treaty as a whole would continue to govern the reserving State and its treaty relationship with other treaty States would not be affected.  The reserving States should not be able to invoke the reservation in that relationship.  States parties should be encouraged to make objections to “impermissible” reservations to convey their positions to the reserving State.  However, the Committee should introduce a formulation that would state that impermissible reservations were of no force even if no objection were made.  Also, the depositary charged with communicating the impermissible reservation should advise the reserving party of the legal problems raised by the reservation.  The depositary’s role in analyzing and drawing conclusions about particular reservations for State action should also be examined.

MICHAEL GUMBLEY (Australia) said his delegation welcomed the progress made in the examination of the scope and content of unilateral acts of States.  It commended the work of the Commission’s special rapporteur and the working group for the development of several important recommendations.  Australia agreed that the definition of a unilateral act, which brought with it a legal obligation, must be examined closely.  It supported the view that, in order to assess whether an act was a unilateral one, which created obligations of international law, there was need for the examination of a State’s intention to do so.  That required consideration of unilateral acts “stricto sensu”, and an objective examination of the intention of States to create a legal obligation.

He said unilateral acts for the purpose of determining legal obligations under the topic must be defined as distinct from any act undertaken within the framework of existing conventions, or customary or institutional law.  Accordingly, he said such acts should be excluded from consideration of the topic of unilateral acts.  Australia also welcomed the progress made in the examination of the topic of reservations to treaties and was pleased that the concept of “intention” of a State had been introduced into the new definition of objection, in a provision of the draft guidelines.

ALFONSO ASCENCIO HERRERA (Mexico) said his delegation continued to hope that the Commission would address the question of damage to the global commons at a later stage.  It accepted that the subject required separate treatment.  Nevertheless, it was important that the Commission study the matter; otherwise its work would not be complete and would not meet the needs of present and future generations.  Furthermore, he said that the Commission itself recognized the ecological unity of the planet.  He took delight in the fact that the Commission reserved the right to examine again the question of the final form of the instrument.  Its provisions must be consistent with those of the Rio Declaration on the environment and development.

ALLIEU KANU (Sierra Leone) said he welcomed the adoption of the 19 articles on diplomatic protection, though it was doubtful the State of nationality of a ship could extend the protection to the crew.  The Commission should clarify whether the nationality of the crew or ship took precedence, since that was not clear from either the Law of the Sea or international law in general.

Continuing, he welcomed the draft articles on the responsibility of international organizations and said the topic should be broadened to “responsibility of international organizations and members”.  While the most useful form for the principles on transboundary groundwaters could not yet be determined, a model law, a framework Convention or guidelines should be considered.  The difficulty of differentiating political from legal aspects of unilateral acts was obvious.  On fragmentation of international law, the Commission would provide a great service by proposing a set of guiding principles for law-making.

Finally, he said, the Commission should include in its future work the consideration of a model code of professional conduct for advocates and counsels before the International Court of Justice.  The code could follow the model rules on arbitral procedure.  There was urgency to ensuring the quality of representation at the Court because errors and failures were occurring because there was no guidance on the competence of lawyers there.  That state of affairs harmed the interests of States, created unnecessary work for the Court and harmed international relations.  Every national bar had a code of conduct.  Having no such rules for the International Court of Justice was inviting misconduct by incompetent lawyers.

ASAD MAJEED KHAN (Pakistan) said the rules of the Vienna convention on the law of treaties had become customary norm.  They were flexible and should not be tampered with.  It was clearly stated that the reservation to a treaty should not be incompatible with the treaty’s intent.  Human rights treaties were no different from others, and reservations should be allowed; otherwise they would lose their value and universality.  The treaty regime, with reservations included, should aim for universality of appeal and acceptance.  The final form of the text on reservations to treaties should be used as guidelines.

Closing Remarks

TEODOR VIOREL MELESCANU (Romania), the Chairman of the International Law Commission, said the Commission would be most interested in receiving comments from governments on two subjects: diplomatic protection and allocation of responsibility in case of transboundary harm.  Written communications on all the subjects in the Commission’s report would be sent on to the relevant special rapporteurs.

Introduction of Draft

The representative of Trinidad and Tobago, on behalf of the bureau, introduced a draft resolution on responsibility of States for internationally wrongful acts (document A/C.6/59/L.22).  By that, the Assembly would commend the relevant set of articles to governments without prejudice as to future adoption or action.  The Secretary-General would be requested to invite governments to submit written comments regarding future action and to prepare a compilation of decisions by international courts, tribunals and other bodies referring to the articles.  Governments would be asked to submit their practice on the matter, and the Secretary-General would be asked to report well before the Assembly considered the question again at its sixty-second session.

Action on Draft

The Committee took up a draft on the convention on the jurisdictional immunities of States and their property (document A/C.6/59/L.16), which had been introduced on behalf of the bureau by Austria’s representative on Friday, 5 November.

The draft, as orally amended, was approved without a vote and without explanation of position before or after action.

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