ESTABLISHMENT OF ‘FINAL AUTHORITY’ SUGGESTED FOR TREATY DRAFTERS TO DECIDE VALIDITY OF RESERVATIONS BY STATES

Sixtieth General Assembly

Sixth Committee

17^th Meeting (AM)

ESTABLISHMENT OF ‘FINAL AUTHORITY’ SUGGESTED FOR TREATY DRAFTERS

TO DECIDE VALIDITY OF RESERVATIONS BY STATES

Legal Committee Continues Debate on International Law Commission Report

(Issued on 1 November 2005.)

Sierra Leone this morning called for the establishment of a “final authority” by treaty drafters to decide the validity of reservations to legal instruments, as the Sixth Committee (Legal) concluded its debate on certain topics considered by the International Law Commission, including reservations to treaties, at its fifty-seventh session this year.  The other topics examined this morning were unilateral acts of States and shared natural resources.

The representative of Cuba also urged the Commission, in its codification of draft articles on the unilateral acts of States, to draw a distinction between such acts, and their legal negative consequences for the State making them, and on third States, as well.  She said such coercive acts contravened international law and the principles of the United Nations Charter.

Also speaking today were the representatives of Togo, Turkey, Spain and Jordan.

The Chairman of the International Law Commission introduced the remaining final topics in the Commission’s report to be discussed by the Committee, namely, “Effects of armed conflicts on treaties”, “Diplomatic protection” and “Fragmentation of international law:  Difficulties arising from the diversification and expansion of international law”.  A set of 14 draft articles on the first topic had been presented by the Special Rapporteur on the subject, one of two new issues added to the Commission’s programme of work.  The other was the fragmentation of international law on which a study group of the Commission was at work.

The Chairman of the Sixth Committee, Juan Antonio Yañez-Barnuevo ( Spain), announced that a new item had been added to the Committee’s agenda, namely, observer status for the Ibero-American Conference in the General Assembly.

The Sixth Committee will meet again at 9:30 a.m. tomorrow, Tuesday, 1 November, to begin debate on the new topics introduced by the Chairman of the International Law Commission.

Background

The Sixth Committee (Legal) met this morning to conclude its debate on “Shared natural resources”, “Unilateral acts of States” and “Reservations to treaties” -– topics considered by the International Law Commission at its fifty-seventh session this year.  It was then to hear the introduction by the Commission Chairman of the final topics, including two new ones, also considered by the Commission at its session.  These are “Effects of armed conflicts”, “Diplomatic protection” and “Fragmentation of international law”.  (For further information on the International Law Commission report, see Press Release GA/L/3282 of 24 October.)

Statements

BADABADI KEREZOUE (Togo) commended the International Law Commission for the way it had started to tackle one of the most complex subjects on its agenda, that of expulsion of aliens, and welcomed the initiating of discussion on the subject.  He said it would be necessary carefully to define its scope.  Such issues of refusal of admission, mass expulsions, decolonization and self-determination should be left out of the consideration; greater attention, however, should be given to reconciling the right to expel with obligations under international law.  It was essential to give any alien being expelled a reasonable time period to settle his or her affairs.

Turning to the subject of the effects of armed conflicts on treaties, he said he favoured the adoption of a legal instrument on the topic.  Understanding had been reached on certain draft articles, even though several of them still needed clarification and elaboration.  He added that he was certain that the Commission would be able to make progress on the difficult topic of unilateral acts of States.

NEHIR UNEL ( Turkey) said the titles of the topic “shared natural resources” might give rise to misunderstanding and recommended changing the name.  She questioned whether the 1997 Convention on the Non-Navigational Uses of International Watercourses, as a model for the subject of shared natural resources, was the best choice.  That Convention had not been adopted by consensus, and it had not yet entered into force, indicating that it did not enjoy broad support.  As to the form of a final legal instrument, she said she supported that of non-binding guidelines.  She also fully supported the condition to establish a threshold for damages caused, and the inclusion of the word “significant” in that context.

Ms. DE ARMAS ( Cuba) said her delegation attached importance to the Law Commission’s work on unilateral acts of States.  It considered that the codification of a legal instrument on the topic should draw a clear difference between unilateral acts that were contrary to the United Nations Charter, and the legal negative consequences for the State that made those acts towards other States, including third States.  She cited the Helms-Burton Law of 12 March 1996 (in the United States) by which, she said, the United States had imposed an economic and commercial blockade against her country.

She said the action was extraterritorial and had no basis in international law.  It also violated the purposes and principles of Chapter I of the United Nations Charter.  The United Nations General Assembly, in resolutions over the last several years, had called for an end to United States sanctions against Cuba.  The Organization of American States (OAS) had also criticized the Helms-Burton Act.  International conferences and summits on economic questions, sponsored by the United Nations, had also rejected such a law.

She said that Cuba had presented detailed information on the subject to the Special Rapporteur; the Commission should devote time to analysis of the subject.

ALLIEU IBRAHIM KANU ( Sierra Leone) noted discussions on a proposal his country had made, namely, the responsibility of member States of an international organization for the organization’s conduct, as a result of membership or their conduct associated with membership.  He said he would welcome a detailed consideration of the item at the Law Commission’s next session.  The Commission should carefully examine the argument that members and the international organization shared “joint and several responsibility”, with the possibility of adjusting it to a regime of proportionate responsibility-sharing.

On the subject of expulsion of aliens, he said the issue affected a large number of people around the world, including in his own country.  He agreed that the key underlying factor was how to reconcile the right to expel with the requirements of international law, especially those relating to the protection of human rights.  The international legal order had faced serious challenges, especially after 11 September 2001.  There was no clarity in State practices as to domestic laws and their relationships to international human rights law.

On reservations to treaties, he said the problem with the current regime on the topic was that after the adoption of “no offence to the object and purpose”, there had been no consensus on who should decide whether a reservation offended the object and purpose of a treaty and was, therefore, invalid.  It was left to the States themselves to decide.  He recommended that all treaty drafters consider the possibility of setting up a final authority to decide the validity of a reservation.  On the topic of fragmentation of international law, he proposed that the Commission formulate a set of “rules of law principles” in its work.

CONCEPCION ESCOBAR HERNANDEZ ( Spain) said it was essential to consider the conditions under which reservations to treaties could be formulated, as well as their validity and a definition and scope for the term “object and purpose”.  She said she supported closely relating the topic to article 19 of the Vienna Convention on the Law of Treaties.  She also supported the use of the word “validity” in the draft text, and preserving the inalienable nature of universal human rights and the free choice of settlement means.

She then detailed observations on several of the draft articles.  For example, she noted that article 3.11, on the different categories of prohibited reservations, was silent on the case of “tacit prohibitions” and recommended its inclusion.  The determination of the compatibility of a reservation should not just be based on the criterion of “object and purpose” of a treaty, but should also be examined in respect to article 27 of the Vienna Convention on the Law of Treaties.

MAHMOUD HMOUD ( Jordan) said that, as there was no existing special legal regime on transboundary aquifers, the Commission’s work on the topic was predominantly progressive development of international law.  While there were certain similarities between the issues, the legal framework between transboundary aquifers and the 1997 Convention on the Law of Non-Navigational Uses of International Watercourses should be sufficiently distinct.

Commenting specifically on the draft articles, he said it was important to include an explicit reference to the General Assembly resolution on the permanent sovereignty over natural resources.  It should be made clear that groundwaters, whether subject to one national jurisdiction or transboundary, were not a common heritage for mankind.  The utilization of transboundary aquifers should be the core of the scope of the articles.  Measures of protection, preservation and management should be part of the scope to the extent they were related to the rights OF other aquifer States in utilization.  Later on, he said, it might be necessary to add other definitions, especially in relation to scientific thresholds describing certain activities.  He supported the approach to encourage bilateral and regional arrangements among aquifer States.  It should be clarified that an agreement among aquifer States prevailed over the draft articles in case of conflict.  The general obligation to cooperate among aquifer States should be studied more carefully because it entailed legal consequences for States which otherwise would have unqualified sovereign right to utilization of the aquifer.

Introduction of Further Topics

DJAMCHID MOMTAZ, Chairman of the International Law Commission, introducing the final subjects considered by the Commission at its session, said the topic, “Effects of Armed Conflicts on Treaties”, while it might be new on the Commission’s programme of work, had been the subject of State practice and theoretical development stretching as far back as the turn of the last century.

He said the Commission had before it a useful study prepared by the Secretariat containing a comprehensive review of previous consideration of the topic, as well as a discussion of its inherent difficulties.  It also had before it the first report of the Special Rapporteur on the topic, Ian Brownlie, containing a set of 14 draft articles.  He said the basic policy underlying the draft articles was to promote and enhance the security and stability of the legal relationships between States by minimizing occasions in which the incidence of armed conflict had an effect on treaty relations.

One of the difficulties that examination of the topic encountered was that the subject was dominated by doctrine, and practice was sparse with much of it being old.  He said the key policy change was the gradual shift towards pragmatism and away from the view that the incidence of armed conflict was beyond the realm of law and “more or less non-justifiable”. 

The Chairman then discussed the 14 draft articles in detail, beginning with draft article 1 which dealt with the scope of the draft articles and was based on the equivalent provision in the Vienna Convention on the Law of Treaties of 1969.  Draft article 2 set out definitions for the terms “treaty” and “armed conflict”, while draft article 3 established the basic principle that the mere outbreak of armed conflict, whether declared or not, did not ipso facto terminate or suspended treaties in force between parties to the conflict.  The Commission supported the basic thrust of the proposed draft article.

He said draft article 4 dealt with the indices of susceptibility to termination or suspension of treaties in case of an armed conflict.  Draft
article 5 concerned the situation where treaties expressly applicable to armed conflict remained operative in the case of an armed conflict, and the outbreak of the conflict did not affect the competence of the parties to the conflict to conclude treaties.  Draft article 6 covered the more specialized question of treaties relating to the occasion for resort to armed conflict.  Continuing, he said draft article 7 dealt with those treaties the object and purpose of which involved the necessary implication that they continued in operation during an armed conflict.  Draft articles 8 and 9 dealt with some of the mechanics of the topic, while draft article 10 covered the question of the legality of the conduct of the parties to an armed conflict.  Draft articles 11 to 14 contained a series of “without prejudice” clauses dealing with the legal effects of decisions of the Security Council taken in accordance with Chapter VII of the United Nations Charter, the status of third States as neutrals, the overlap with other aspects of the law of treaties, and the question of the revival of terminated or suspended treaties, respectively.

The Chairman then dealt with the topic “Diplomatic protection”, recalling that the Commission had completed the first reading of the draft articles on the subject and transmitted them to Governments for comments.  The Commission had written to Governments last October requesting written comments to be submitted to it by 1 January 2006; receiving appropriate guidance from Governments was crucial for the Special Rapporteur on the topic to produce his next report and for the Commission to meet its goal of completing the second reading of the draft articles at its next session in 2006.

The Chairman gave a detailed account of the discussion of the topic of “Fragmentation of international law: Difficulties arising from the diversification and expansion of international law”.  He recalled that, following a feasibility study conducted in 2000, the topic was included in the Commission’s current programme of work in 2002.  It established a study group and agreed upon five studies to be conducted.  This year, the study group considered three substantive issues, including “regionalism” and “interpretation of treaties in the light of any relevant rules of international law applicable in relations between parties”.  It also reviewed a report on “the study on Hierarchy in International Law:  jus cogens, obligations erga omnes, Article 103 of the Charter of the United Nations, as conflict rules”.  He said it was envisaged that the Commission’s study group would submit a consolidated study in 2006.

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