Sixty-first General Assembly

Sixth Committee

11^th Meeting (AM)

LEGAL COMMITTEE CONTINUES REVIEW OF LAW COMMISSION PROPOSALS TO DEAL WITH ISSUES

OF DIPLOMATIC PROTECTION, LIABILITY FOR CROSS-BORDER HARM

 

Hungary Speaks of Dependence on Nearby Countries for Most of Its

Surface Water; Russian Federation Suggests New Topics for Law Body Agenda

Delegates congratulated the International Law Commission for its productive session in having completed work on several legal texts but offered differing views as to the final form some of those texts should take, in the Sixth Committee (Legal) this morning.

As the Committee discussed the Commission’s annual report for 2006, it was generally focusing at this time on the chapters dealing with draft articles on diplomatic protection and draft principles on international liability for transboundary harm.

Hungary’s representative, for example, said that, because of its vulnerable geographical position, being in the centre of the Danube water basin and getting 95 per cent of the surface water from upstream neighbouring countries, Hungary had always advocated an adequate legal regime for the allocation of loss in the case of transboundary harm.  His Government would have preferred a set of draft articles instead of principles, but having studied the Commission’s report, he saw merit in several of the arguments favouring the adoption of the relevant rules in the form of principles. 

The representative of Iran said the draft articles on diplomatic protection were concerned only with the rules governing circumstances in which protection might be exercised and the conditions to be met before that could take place.

The representative of the Russian Federation said the International Law Commission should give priority attention to the question of protection of victims of disasters, jurisdictional immunity of international organizations and, possibly, the question of extra-territorial jurisdiction.

Also speaking on the International Law Commission report were the representatives of Spain, Poland, Czech Republic and Chile.

The Committee will meet again tomorrow, Friday, 27 October, at 10 a.m. to continue its examination of the International Law Commission report and to hear an address from the President of the International Court of Justice.

Background

The Sixth Committee (Legal) met this morning to continue its examination of the annual report of the International Law Commission, with a specific focus at this time on the chapters covering draft articles on diplomatic protection and draft principles on international liability in case of loss from transboundary harm arising from hazardous activities not prohibited by international law.  (For background on the report see Press Release GA/L/3302 of 23 October).

Statements

CONCEPCION ESCOBAR HERNANDEZ ( Spain) said that, as a whole, the draft articles on diplomatic protection were worthy of support.  She supported in particular such provisions as diplomatic protection as a right of the State, the maintaining of the link with nationality as a basic element in exercising diplomatic protection and the recognition of the continuity of nationality in the period between injury and claim.  She said the comments on the articles were valuable as well, particularly the one that discussed the difference between diplomatic protection and consular assistance.  The articles offered an interesting balance between codification and progressive development.  She believed that the Commission’s work on diplomatic protection had achieved sufficient maturity to adopt a convention on the subject and an ad hoc committee of the Assembly should be set up to elaborate a text.

On international liability, she said the principles dealt with a complicated subject.  Although it had been suggested that the principles be endorsed by the Assembly through a declaration, Spain had always supported the Commission’s work on the topic, leading to a convention.  The decision as to the final form of the principles on international liability should remain connected to the decisions on international responsibility.

Turning to the future work of the Commission, she said that without doubt the dynamism of international law and the need to respond to new realities required the Commission to constantly update its work.  However, the Commission should choose only those items that were most appropriate for codification.  Spain considered the items related to State jurisdiction to be particularly important.

REMIGIUSZ HENCZEL ( Poland) said he supported exploring the elaboration of a convention on the basis of the draft articles on diplomatic protection.  As to the draft principles on international liability, he believed the Assembly should endorse them by a resolution and he urged States to take national and international action to implement them.  The final form of work on the liability aspects should not be different from that on the preventive aspects.  He offered specific comments on several of the principles.

On the work programme of the law commission, he said, he appreciated the constant efforts to guarantee a continuity of substantial engagement in the most important questions of contemporary international law.  Poland fully supported the new topics chosen, convinced that all of them fulfilled conditions necessary for their codification.  He added that Poland did not, however, believe the topic of “most favoured nation clause” should be reopened by the Commission.  The topic should first be dealt with in other international forums that had the necessary technical expertise and policy mandate.

ISTVAN HORVATH ( Hungary) said it was a remarkable achievement that the International Law Commission had completed the second reading of the draft articles on diplomatic protection and on international liability in case of loss from transboundary harm arising out of hazardous activities.  His delegation had taken note of the Commission’s decision to include in its long term programme of work five new topics; Hungary shared the view that the issue of the immunity of State officials from foreign criminal jurisdiction and the question of jurisdictional immunity of international organizations were highly important and merited the Commission’s attention.  In view of the Commission’s heavy workload, he said, the inclusion of other new topics needed a careful examination with special regard to outstanding issues.

On the topic of diplomatic protection, he emphasized that the relevant State practice and case law had already established a regime of clearly defined principles and specific rules on the subject, which now to a large extent were part of customary law and international treaties, such as State responsibility.  He noted that the adoption of those draft articles codified a segment of the customary law, which would complement and support the further development of the topic and that of State responsibility.

He said that because of its vulnerable geographical position, being in the centre of the Danube water basin and getting 95 per cent of the surface water from upstream neighbouring countries, Hungary had always advocated an adequate legal regime for the allocation of loss in the case of transboundary harm.  His delegation would have been more satisfied if the subject had been presented by the Commission as a set of draft articles instead of principles.  However, having studied the Commission’s report, his delegation saw merit in several of the arguments favouring the adoption of the relevant rules in the form of principles.  His delegation would be able to support compromise provided that all interested countries contributed to the fulfilment of one of the most important goals of the principles formulated in the Preamble to them: “…appropriate and effective measures should be in place to ensure that those natural and legal persons, including States, that incur harm and loss as a result of such incidents are able to obtain prompt and adequate compensation.” 

HOSSEIN PANAHIAZAR ( Iran) said the draft articles on diplomatic protection were concerned only with the rules governing the circumstances in which that protection might be exercised and the conditions that might be met before that could be done.  They did not seek to determine the ways a person might acquire the nationality of a State.  It had not been the International Law Commission’s mandate to enumerate the factors establishing nationality.  On article 4 (State of nationality of a natural person), he said the Commission had eloquently stated the right of States to determine who their nationals were.  Iran believed that States, in exercising that right, should avoid adopting laws, which increased the risk of dual nationality, multiple nationality or statelessness.

With regard to article 7 (multiple nationality and a claim against a State of nationality), he observed that the Commission’s report had invoked the awards of the Iran-United States Claims Tribunal as recent sources for demonstration of the evolution of the rules of international law in the field of diplomatic protection.  Iran, he said, did not share that opinion.  The awards of the majority arbitration body in dual nationality matters concerned principally the law of treaties and the interpretation of the Algerian Declaration, signed by the two Governments in 1981, rather than diplomatic protection.

He said most disputes before that tribunal, including all of those brought by claimants having dual nationality, involved a private party on one side and a Government or a Government-controlled entity on the other.  Many also involved primarily issues of municipal law and general principles of law.  Consequently, he said, the inclusion of such a controversial article in the final text meant depriving more interested States from approving the outcome instrument on that topic.

MILAN DUFEK ( Czech Republic) said his delegation found the final set of articles on diplomatic protection satisfactory on the whole.  The draft articles, including the commentaries, were a substantial and valuable contribution to the codification and progressive development of international law in that area.  His delegation appreciated that in the several instances where customary international law did not provide a clear basis for codification, the Commission had decided in favour of broader protection of the rights of injured.  It believed that that was the right course to take.  His delegation also welcomed the draft articles as a step forward in the progressive development of international law rules of diplomatic protection.  It had in mind the provisions relating to stateless persons and refugees (article 8) and the provision concerning recommended practice of the State (article 19).

Concerning the future form of the draft articles, he said his delegation was of the view that the articles should, at least at this stage, remain in a non-binding form and that the General Assembly should treat them in the way it did the articles adopted in 2001 on responsibility of States for internationally wrongful acts -– that is, adopt a resolution noting and welcoming the draft articles and including an annex with the full text.  His delegation believed that the future form of the articles on diplomatic protection should be bound up with the final form of those on responsibility of States for internationally wrongful acts.  On the Commission’s future work programme, he said the focus should be on topics that reflected the consistency and continuity of the Commission’s work; topics such as the immunity of State officials from foreign criminal prosecution or jurisdictional immunity of international organizations were closest to the ideal.

CLAUDIO TRONCOSO ( Chile), addressing the topic of unilateral acts, agreed with the inclusion of the three grounds for invalidity in universal acts:  the representative’s lack of competence; the expression of consent and invalidity contrary to a norm of jus cogens.  However, concerning the coercion of a representative of a State, he believed it would be more appropriate to formulate the guiding principle in an imperative manner.  Concerning the corruption of a representative, the grounds that directly affected the manifestation of consent should be emphasized.  He said he agreed with the determination of the grounds that could lead to the termination of a unilateral act, as well as its modification, suspension and revocation.  

Chile fully agreed with the report’s definition of a unilateral act which focussed exclusively on unilateral acts in their strict sense, ruling out other conduct which could produce similar effects.  As to those who had the capacity to take unilateral action, he favoured a restrictive approach.  Persons other than Heads of State or Government, or Foreign Ministers should be exceptional cases.  A draft principle related to the principle of “good faith” was unnecessary.

MARIA V. ZABOLOTSKAYA ( Russian Federation) said the Commission had achieved significant progress on the draft articles on diplomatic protection.  She observed that there were several important issues that the Commission did not deal with, such as the question of new agenda items.  She said the Commission should give priority attention to the question of protection of victims of disasters, jurisdictional immunity of international organizations and, possibly, the question of extra-territorial jurisdiction.  The Commission’s work on diplomatic protection was a successful combination of codification and progressive development of international law.  She said the Commission was able to find a satisfactory solution to a number of issues.  The definition of diplomatic protection in article 1 was a correct approach, she stated, noting that the Commission was able to avoid the contradictory question of what constituted diplomatic protection under the law of a State or on behalf of a specific person who had suffered an injury.

She said the Commission adopted the right approach in article 5 on the continuous nationality of a natural person, as well as article 6 which covered multi-nationality and claims against a third State.  She said appropriate attention should be paid to the commentary on the two articles.  She commended the Commission for updating the provisions of article 9 on State of nationality of a corporation.  Her delegation had concerns about article 13 on “other legal person” and would have preferred its exclusion from the draft articles since the subject was covered by customary international law.  She observed that the draft articles were on the whole balanced and should be adopted as a convention.

She noted the significant progress made by the Commission on its work on the topic of international liability in case of loss from transboundary harm, arising as a result of hazardous activities.  She believed the Commission chose the best possible formulation in drawing up the draft principles.  She agreed with the scope of application of those principles, supported the draft principles and hoped they would be adopted by the General Assembly in the form of a declaration. 

She said that having completed work on the draft principles on international liability, it would be logical for the Commission to return to consideration of the question of adapting the draft articles on prevention of transboundary harm, arising out of hazardous activities, which the Commission had already completed.  The two texts would complement each other, she said.

* *** *

For information media • not an official record