Sixty-first General Assembly

Sixth Committee

9^th Meeting (AM)

ASSEMBLY’S LEGAL COMMITTEE IS TOLD OF NOTABLY PRODUCTIVE SESSION

BY INTERNATIONAL LAW COMMISSION IN CURRENT YEAR

Review of 2006 Report Begins; Chairman Says Law Body Made Progress on

Issues of Diplomatic Protection, International Liability, Shared Natural Resources

The International Law Commission had had a particularly productive session this year, having completed work on several issues and adding more new topics to its programme, the Chairman of the Commission told the Sixth Committee (Legal) this morning as it began its discussion of the annual report of the Commission.

The Chairman said the Commission completed the second reading of the draft articles on diplomatic protection, as well as the draft principles on international liability in case of loss from transboundary harm arising out of hazardous activities.  The Commission also adopted, on first reading, a set of draft articles on the law of transboundary aquifers under the topic of “shared natural resources”, and a set of Guiding Principles on the unilateral acts of States.  The Commission also completed a set of conclusions on the topic “fragmentation of international law”.

The Chairman said the Commission relied on the Sixth Committee for advice from Governments and for their reactions to larger policy issues.  Their input was particularly valuable in the case of newer topics involving emerging State practices, which were not always accessible or open to the public.  The Commission’s success in the codification of international law therefore depended to a large extent on the support it received from the Committee and Governments.

Offering comments on the Commission’s report this morning were the representatives of China, Netherlands, Italy and Austria.

The International Law Commission, established by the General Assembly in 1947, plays a key role in the development of international law and its codification.  It prepares draft articles on topics of international law which are then referred to the Assembly for final action.  The Commission meets annually and is composed of 34 members who are elected by the Assembly for five-year terms and who serve in their individual capacity, not as representatives of their Governments. 

The Sixth Committee will meet again on Wednesday, 25 October, at 10 a.m. to continue its examination of the International Law Commission report.  It is also expected to take action on three draft resolutions approving, respectively, observer status in the General Assembly for the Fund for International Development of the Organization of the Petroleum Exporting Countries, the Indian Ocean Commission and the Association of Southeast Nations (ASEAN).

Background

The Sixth Committee (Legal) met this morning to begin consideration of the 540-page 2006 report of the International Law Commission (A/61/10) covering the work of its fifty-eighth session, which was held in two parts in Geneva: from 1 May to 9 June and from 3 July to 11 August 2006.  The Commission dealt with nine major topics, completing its work on several and adding more new issues to its long-term programme of work.

The Commission completed the second reading of the 19 draft articles on Diplomatic Protection and has recommended that the General Assembly elaborate a convention on the basis of those articles.  The draft articles on Diplomatic Protection, which are connected to the Commission’s study of State Responsibility, set out the rules that relate to the conditions that must be met for the bringing of a claim for diplomatic protection. 

The Commission also finished work on another topic, that of “international liability for injurious consequences arising out of acts not prohibited by international law” by the adoption of draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities.  The Commission considered the “polluter-pays” principle as an essential component underpinning the draft articles to ensure that victims suffering harm as the result of an incident involving a hazardous activity were able to obtain prompt and adequate compensation.  The Commission recommends that the General Assembly endorse the draft principles by a resolution, and it urges States to take national and international action to implement them.

The Law Commission also adopted Guiding Principles on yet another topic, “unilateral acts of states”.  The set of 10 guiding principles, together with commentaries relating to unilateral declarations of States capable of creating legal obligations, have been commended to the attention of the General Assembly.

Concerning the topic “shared natural resources”, the Commission established a Working Group on Transboundary Groundwaters to complete the consideration of the draft articles submitted by the Special Rapporteur; referred 19 revised draft articles to the Drafting Committee; and subsequently adopted on first reading a set of draft articles on the law of transboundary aquifers, together with commentaries.  The report states that the Commission would welcome comments from Governments on the draft articles and commentaries as well as the final form of the draft articles.  The latest draft articles are a follow up to the Commission’s previous work on the codification of the law of surface waters which led to the United Nations Convention on the Law of Non-Navigational Uses of International Watercourses.

On responsibility of international organizations, the Commission adopted 14 draft articles, together with commentaries, dealing with circumstances precluding wrongfulness and with the responsibility of a State in connection with the act of an international organization.  The Commission invited comments from Governments on several of the articles and solicited responses to questions posed about obligations to cooperate and obligations to compensate injured parties. 

As the Commission continues its work on the topic of reservations to treaties, it recommended that the Secretariat, in consultation with the Special Rapporteur on the subject, organize a meeting, during the Commission’s next session, with United Nations experts in the field of human rights, including representatives of monitoring bodies, to discuss reservations to human rights treaties.  From 1998 to 2005, the Commission considered and provisionally adopted 71 draft guidelines intended to eventually serve as a Guide to Practice for States when making reservations to treaties.  The Commission continued its work refining several of the draft guidelines.  It referred to the Drafting Committee 16 draft guidelines dealing with the definition of the object and purpose of the treaty and the determination of the validity of reservations.  The Commission also adopted five draft guidelines dealing with validity of reservations, together with commentaries.  In addition, the Commission reconsidered two draft guidelines dealing with the scope of definitions and the procedure in case of manifestly invalid reservations which were previously adopted, in the light of new terminology.

Concerning the topic “effects of armed conflicts on treaties”, which the Commission included in its long-term programme of work in 2000, the Special Rapporteur on the subject noted that there was general support for the view that the topic was part of the law of treaties and not of that on the use of force.  It was also agreed that the subject was closely related to other domains of international law such as international humanitarian law, self-defence and State responsibility.  However, given the existence of substantial differences of opinion on the subject, it would be premature to send the issue to a working group.  It would be better to prepare a third report on the topic. 

As to the relatively new topic -- included in 2005 -- the obligation to extradite or prosecute (‘aut dedere aut judicare’), the Commission considered the preliminary report of the Special Rapporteur, which listed the most important points for further consideration.  The Commission requested information from Governments on their related legislation and practice, particularly more contemporary ones.

On fragmentation of international law: difficulties arising from the diversification and expansion of international law, the law Commission considered the report of its Study Group, with its 42 conclusions, which it commended to the attention of the General Assembly.  The analytical study summarized and analysed the phenomenon of fragmentation, taking account of studies prepared by various members of the Study Group, as well as discussions within the Study Group itself.  The Commission requested that the analytical study be made available on its website and be published in its Yearbook.

The Commission also decided to include the following topics in its long-term programme of work: “immunity of State officials from foreign criminal jurisdiction”; “jurisdictional immunity of international organizations”; “protection of persons in the event of disasters”; “protection of personal data in the trans-border flow of information”; and “extraterritorial jurisdiction”.

The Commission decided that its next session be held at the United Nations Office in Geneva in two parts -- from 7 May to 8 June 2007 and 9 July to 10 August 2007.

The International Law Commission was established by the General Assembly in 1947 to promote the progressive development of international law and its codification.  The Commission, which meets annually, is composed of 34 members who are elected by the General Assembly for five-year terms and who serve in their individual capacity, not as representatives of their Governments.

Most of the Commission’s work involves the preparation of drafts on topics of international law.  Some topics are chosen by the Commission and others are referred to it by the General Assembly or the Economic and Social Council.  When the Commission completes draft articles on a particular topic, the General Assembly usually convenes an international conference of plenipotentiaries to incorporate the draft articles into a convention, which is then open to States to become parties.

The officers of the International Law Commission are: Chairman, Guillaume Pambou-Tchivounda (Gabon); First Vice-Chairman, Giorgio Gaja (Italy); Second Vice-Chairman, Victor Rodriguez Cedeno (Venezuela); Rapporteur, Xue Hanqin (China); and Chairman of the Drafting Committee, Roman A. Kolodkin (Russian Federation).

Introduction of Law Commission Report

GUILLAUME PAMBOU-TCHIVOUNDA, Chairman of the International Law Commission, described this year’s session as particularly productive.  The Commission completed the second reading of the draft articles on diplomatic protection, as well as the draft principles on international liability in case of loss from transboundary harm arising out of hazardous activities.  The Commission also adopted on first reading a set of draft articles on the law of transboundary aquifers under the topic of “shared natural resources”, as well as a set of guiding principles on the unilateral acts of States.  The Commission also completed a set of conclusions on the topic “fragmentation of international law”.

He said the Commission relied on the Sixth Committee for advice from Governments and for their reactions to larger policy issues, as well as for providing the Commission with those State practices that were not readily available.  The Committee’s input was particularly valuable in the case of newer topics involving emerging practices which were not always accessible or open to the public.  The Commission’s success in the codification of international law, he added, therefore depended to a large extent on the support it received from the Committee and Governments. 

He pointed out that the Commission had endorsed the inclusion of several new topics on its agenda: “immunity of State officials from foreign criminal jurisdiction”; “jurisdictional immunity of international organizations”; “protection of persons in the event of disasters”; “protection of personal data in transborder flow of information”; and “extraterritorial jurisdiction”.  The Commission also decided to request the views of Governments on the value of further work on the topic “the most-favoured-nation clause” in the light of changes in the international situation and the continued importance of this clause in contemporary treaties. 

Citing the Commission’s concern on the matter, he urged the Assembly to restore the honoraria for Special Rapporteurs. 

He then summarized the first three chapters of the report, offering additional comments on the topics.   In addition to the introductory chapter, he introduced the chapters on Diplomatic Protection and International Liability.

DUAN JIELONG ( China) said that on the whole he viewed the text of the draft articles on diplomatic protection as positive.  Certain principles should be followed in exercising that right: diplomatic protection was a right of the State of nationality, rather than an obligation; the State of nationality in exercising that right must not encroach upon the territorial jurisdiction of the State where an injury occurred and should respect its law.  Citizens and legal persons outside their State of nationality should be primarily protected by the law of the State where an injury has occurred, supplemented by protection provided by the State of nationality, and the State of nationality should ensure that measures taken should be proportionate to the injury and not excessive.  Diplomatic protection should be without prejudice to other applicable rules of international law.  He then provided specific comments on several articles.

Turning to international liability, he said the draft principles were of great theoretical and practical significance, and he supported casting the draft principles into a declaration or a set of guidelines or a model law.  He then offered specific comments on several of the principles.

JOHAN LAMMERS (Netherlands), speaking on diplomatic protection, supported the possibility of elaborating a convention on the basis of the draft articles, but said the “clean hands” doctrine should not be included in such an exercise.  He provided language for a reformulation of article 3.  He applauded article 8 because of its importance to refugees who in most cases would otherwise be left unprotected.  Referring to article 14, he said the Netherlands believed that no prior exhaustion of local remedies was required for diplomatic action stopping short of bringing an international claim.  He proposed deleting the words “under international law” in article 16.  He firmly supported the inclusion of article 19 on recommended practice.

On international liability, he said he agreed with the underlying notion of the draft principles.  He said the draft principles sought to fill a gap in international law through the provision that States should take all necessary measures to ensure the availability of prompt and adequate compensation for victims of transboundary damage caused by hazardous activities.  His Government generally supported the set of procedural and substantive minimum standards identified.  In general, he believed the commentaries had significantly improved on second reading.  The form of work on the liability aspects of the topic should not be different from that on the prevention aspects —- which took the form of a draft convention.

GIUSEPPE NESI ( Italy) said that it was reasonable to postpone for a year any decision on whether an international convention should be adopted on diplomatic protection until the General Assembly considered which course should be taken on the articles on State responsibility.  On the draft articles on diplomatic protection, he said his delegation welcomed the changes that enhanced the position of the protected individual; that was consonant with the developments that had taken place in related areas of international law. In the specific field of diplomatic protection, he said, the traditional view that the State of nationality exercised its own right when it took up the case of one of its subjects could no longer be upheld.  When individuals were injured in breach of an international obligation, they were not necessarily confined to the possibility of requesting diplomatic protection.  Article 16 (which dealt with actions or procedures other than diplomatic protection) was therefore important as a reminder that diplomatic protection was not a legal institution that excluded resort to other forms of protection that might exist under international law.

He said the Commission and its Special Rapporteur had to be congratulated for the draft articles on international liability in case of loss from transboundary harm arising out of hazardous activities.  He said the subject had given rise to more than thirty years of discussion within the Commission and elsewhere.  In 2001 the Commission had adopted a set of articles on the prevention of harm from transboundary hazardous activities.  However, the most controversial issue of liability remained.

The proposed principles provided a useful list of the issues involved and of the measures that needed to be taken to protect potential victims –- be they States or natural or legal persons.  The main option that had been rightly taken by the Commission implied the imposition on the operator of an obligation to provide compensation.  He said that the suggested principles would probably need to be implemented and developed through global, regional or bilateral agreements with regard to particular categories of hazardous activities.

FERDINAND TRAUTTMANSDORFF ( Austria) said his country was not convinced of the usefulness of an immediate elaboration of a convention on diplomatic protection; Austria preferred that the General Assembly first take note of the draft articles, and put the item on its agenda again after a few years.  That would give the Assembly the opportunity to assess the necessary steps towards the elaboration of a convention, either by convening an ad hoc committee, a preparatory committee or a codification conference.  It would also give States the opportunity to further consider the contents of the draft articles.

He said the definition of draft article 1, which referred to the exercise of diplomatic protection only on behalf of nationals of a State, seemed inconsistent with draft article 6, which envisaged the possibility that a State might also exercise diplomatic protection in respect of persons other than its own nationals, such as stateless persons and refugees.  A redrafting might be warranted.

He cited other articles such as 15 (exceptions to the local remedies rule) and 19 (recommended practice) which required further study for their implications. He said the draft text was of great importance for the day-to-day interactions between States.

On international liability, he said Austria supported the idea that the General Assembly should take note of the principles concerning that area of international law by a resolution.  States should take them into account as recommendations, when taking measures at the national and international level.  However, he said, the principles as they now stood still raised a number of questions which would require further clarification; in principle 4, paragraph 1, it was not clear whether States were requested to ensure compensation for victims outside their territory or also within their territory.

On future topics for the Commission’s long-term programme of work, he said Austria supported the inclusion of the “jurisdictional immunities of international organizations”.  As a host country of the United Nations and other international organizations, Austria believed the practice of States in that field called for a certain harmonization.  National courts needed more legal certainty when deciding on the immunity of international organizations.

He said Austria also saw some merit in dealing with the issue of “immunity of State officials from foreign criminal jurisdiction”, a matter that had been before the International Court of Justice frequently in recent times.  The time seemed ripe for a stock to be taken of the present practice and for an attempt to be made to elaborate general rules on the subject.  He said preliminary studies should be made on the other proposed topics before a decision was taken on their inclusion in the work programme.

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