Sixty-first General Assembly

Sixth Committee

16^th & 17^th Meetings (AM & PM)

LEGAL COMMITTEE HEARS CALL FOR MEETING OF HUMAN RIGHTS EXPERTS ON ISSUE

OF STATES WISHING TO ENTER RESERVATIONS TO TREATIES

 

Review of Law Commission Topics Continues; Debate Is Concluded

On Transboundary Aquifers, Responsibility of International Organizations

Delegates welcomed a suggestion by the International Law Commission of holding a meeting with United Nations experts in the field of human rights, including representatives of monitoring bodies, to discuss the issue of reservations to human rights treaties, as the General Assembly’s Sixth Committee (Legal) today continued its examination of the International Law Commission’s report on its 2006 activities.

The representative of the Netherlands, endorsing the proposal, said it was widely felt that the system of the law on reservations favoured participation in a treaty at the expense of the treaty’s integrity.  On behalf of the Nordic countries, the representative of Sweden agreed, saying a State should not be permitted to accede to a treaty, especially a normative multilateral treaty and, at the same time, nullify central provisions of that treaty through reservations.

Taking a different view was the representative of the United Kingdom who questioned the need for a special meeting, saying reservations to normative treaties, including human rights treaties, should be subject to the same rules as reservations to other types of treaties.

[From 1998 to 2005, the Commission considered and provisionally adopted 71 draft guidelines that are intended to eventually serve as a Guide to Practice for States when making reservations to treaties.]

In addition to the subject of reservations to treaties, another topic from the Commission’s annual report, introduced by its Chairman today, was the issue of unilateral acts of States.  The Commission adopted 10 guiding principles on unilateral acts of States, that is, unilateral declarations of States capable of creating legal obligations, which it has commended to the attention of the General Assembly.

Also speaking on that subject and reservations to treaties this morning were the representatives of Mexico, Austria, Canada, China, Belgium, Spain, Portugal, Japan, Germany, United Kingdom, South Africa and Italy.  Speaking this afternoon were the representatives of France, the United States, Poland and Israel.

The Special Rapporteur on the topics of reservations to Treaties and unilateral acts of States responded to comments made by delegates.

This morning the Committee completed its examination of the report’s chapters on transboundary aquifers and responsibilities of international organizations.  Speaking on those topics were the representatives of Jordan, India and Cuba.  A representative of the European Commission also made a statement. 

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 drafts 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 Committee will meet again tomorrow, 1 November, at 10 a.m. to continue its examination of the International Law Commission report.

Background

The Sixth Committee (Legal) met this morning to continue its discussion of the annual report of the International Law Commission.  (For background information, see Press Release GA/L/3302 of 23 October.)  It has been focusing on the chapters of the report that deal with its work on the topics of transboundary aquifers and responsibilities of international organizations.

After the Committee finishes hearing speakers on those topics today, the President of the International Law Commission is expected to present the chapters in the Commission’s report dealing with the topics of reservations to treaties and unilateral acts of States.

As the Commission has continued its work on the topic of reservations to treaties, it recommended 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 that are 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 its drafting committee 16 draft guidelines dealing with the definition of the object and purpose of the treaty in question and the determination of the validity of any reservations.  The Commission also adopted five draft guidelines dealing with validity of reservations, together with commentaries.  In addition, in the light of new terminology, 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.

The Commission adopted 10 guiding principles on unilateral acts of States, with commentaries relating to unilateral declarations of States capable of creating legal obligations, which it has commended to the attention of the General Assembly.

Statements

MAHMOUD HMOUD ( Jordan), speaking on the topic of responsibility of international organizations, said the law commission should take a cautious approach in the development of rules on the subject, especially when modelling it after articles on State responsibility.  International organizations, unlike States, were not sovereign.  He then took up some of the draft articles on the topic, such as article 17 “consent”, article 18 “self-defence”, article 20 “force majeure”, article 22 “necessity”, article 25 “aid or assistance by a State” and articles 28 and 29.  He said the issue of a valid consent by an international organization was a complex matter, especially when the organization had several organs with different, yet overlapping functions, such as the United Nations.  Which body/individual had the authority to issue such consent?  Was there an implicit consent by the international organization?  Those were some of the questions, he said, that needed to be studied carefully.  On articles 20 and 21 “distress”, he said it was appropriate for those two forms of circumstances precluding wrongfulness to be included in the draft articles.

On article 28, he said his delegation supported the contention that a State might not rely on transferring its competence to the international organization in relation to an international obligation that was breached by that organization to relieve itself from responsibility.  On article 29, his delegation did not see any reason why international organizations and States should not be under obligation to cooperate to end a breach of the international organization of a peremptory norm of international law.

A.K.S. VIJAYAN ( India) said international practice was still evolving in the area of transboundary aquifers.  Considerable growth in international practice and scientific knowledge had taken place only in recent years and he therefore welcomed the caution exhibited by the Commission in taking the view that it was premature to decide on the final form the draft articles should take.  India supported including an affirmation of the principle of State sovereignty over the portion of a transboundary aquifer or aquifer system located in its territory.  He then offered observations on several of the articles and said India would be submitting further comments.

As to the articles on responsibility of international organizations, he said India had earlier sounded a note of caution that the attributes of a State and an international organization were not the same.  Also, given the diversity of international organizations and differences in their objectives and functions, it would be difficult to assess which of the circumstances precluding wrongfulness of the articles on State responsibility could be applicable to international organizations, especially given the absence of definitive practice in the area.  He cited article 18 on self-defence as a good example.  He also questioned whether the concept of “necessity” should be extended to international organizations.

ANNETTE PINO RIVERO (Cuba), speaking on shared natural resources, said the draft articles on the topic clarified the sovereign use by States of the aquifers on their territory, and facilitated cooperation between States to protect and use them fairly.  She proposed the replacement of the term “reasonable” with “sustainable” in the text, to conform to international environmental laws.  She said the Commission should explain the notion of “significant damage”, in order to avoid various interpretations by States.

On the responsibility of international organizations, she stressed that there was a difference in the structures of States and those of international organizations.  The Commission should not transfer all wholesale aspects of the articles on state responsibility to the draft text on the responsibility of international organizations.  The provision on “state of necessity” in the draft articles on responsibility of international organizations could only be invoked to exclude international responsibility for wrongful acts, when their commission was the only way to protect the essential interests of the organization.  States and international organizations had distinct and independent legal personalities, she said.  It was up to the international organization to compensate an injured party.

ESA PAASIVIRTA, for the Delegation of the European Commission to the United Nations, said that article 17 on “consent” was very important to his organization.  Under two regulations of 1999, the Commission provided support for electoral processes, in particular by supporting independent electoral commissions, granting material, technical and legal assistance in preparing for elections.  European Commission election observation missions were usually led by a Member of the European Parliament upon the invitation of the host government.  She said that article 28, which put forward the new idea that a State member of an international organization might be held responsible for bestowing competence on that organization.  The approach to the article was difficult for the European Commission to understand.

He said the more relevant examples advanced by the Special Rapporteur relating to the jurisprudence of the European Court of Human Rights did not support the broad language of draft article 28.  While the Strasbourg Court emphasized that State parties to the European Convention on Human Rights might not evade their obligations by transferring powers to an international organization that was not a party to the Convention, he continued, it also underlined that State responsibility for an act of that organization did not arise where the organization offered a level of protection of human rights equivalent to that to which Member States were held by international law, in this case by the European Convention on Human Rights.  He said that criterion of equivalence between the formal obligations of Member States and the obligations inherently respected by the organization was simply missing in draft article 28.

Introduction of Report

GUILLAUME PAMBOU-TCHIVOUNDA ( Gabon), Chairman of the International Law Commission, presented the third part of the Commission report, chapters VII and IX, on reservations to treaties and unilateral acts of states, respectively.

Statements

ELINOR HAMMARSKJOLD ( Sweden), speaking for the Nordic countries, said the topic of reservations to treaties was of particular importance to those countries, particularly reservations that were incompatible with the object and purpose of a treaty.  Defining the notion of object and purpose of a treaty had proved to be an extremely difficult task.  The two alternative suggestions for article 3.1.5 carried a risk of increasing confusion rather than adding clarity.  As to reservations that were considered incompatible, a growing number of States, including the Nordic countries, were developing a practice of severing the reservation in question from the treaty relation between the States concerned.

She said a State should not be permitted to accede to a treaty, especially a normative multilateral treaty and, at the same time, nullify central provisions of that treaty through reservations.  An objection was not necessary to establish that fact.  However, unless there was a body that had the authority to classify a reservation as invalid, those objections still served an important role.  She supported the suggested intermediate solution, which involved the depositary to the treaty.

The Nordic countries very much supported the holding of the recommended meeting with human rights experts to discuss issues relating to reservations to human rights treaties.  However, great caution should be exercised in considering whether to allow a separate regime to develop for dealing with specific effects of invalid reservations to human rights treaties.

ALEJANDRO ALDAY ( Mexico) said the validity of reservations to treaties was not an easy subject.  It required careful analysis.  A definition of the object and purpose of a treaty was essential to the treatment of the subject.  Mexico believed that applying the criteria of object and purpose of a treaty was not subsidiary, but rather it underlined all aspects with regard to reservations.  He agreed with the Special Rapporteur that a definition should be broad and general using methods in conformity with norms of interpretations of treaties.  Determining the object and purpose of a treaty was not a simple task, yet it was important to identify the rights and obligations from which a party could not derogate.  Norms, rights and obligations were essential to a treaty and their amendment could seriously affect the balance of the treaty.

GERHARD HAFNER ( Austria), addressing reservations to treaties, fully endorsed the proposal to hold a meeting with human rights experts, including representatives of monitoring bodies.  Specifically on the draft guidelines, he said the qualifier “specified” in the context of the reservations posed some problems.  He cited instances in which the passing of the object and purpose test would be necessary. As to the consequences of invalid reservations, in Austria’s view, invalid reservations were null and void.  Austria agreed that the different categories of prohibited reservations in article 19 of the Vienna Convention on the Law of Treaties should be on put on an equal footing insofar as the same legal consequences should apply.

Concerning the status and competence of monitoring bodies, the relevant guidelines were not very consistent, he continued, offering specifics from some of the guidelines. He expressed major concern over guideline 3.3.4 on the effect of collective acceptance of an invalid reservation.

JOHAN LAMMERS ( Netherlands) said the definition of the object and purpose of a treaty seemed to continue to create problems.  He questioned whether it was a good idea to want to determine “object and purpose” in greater detail at all, since it was not unique to the subject of reservations.  He noted that it was a very widely used concept in the law of treaties.  Any definition was also likely to have an impact in other situations in which a reference was made to the same concept, a possibility that might lead to ill-considered solutions and to unexpected legal effects.  A definition would thus require a further study of its potential impact in other situations, a project well beyond the Commission’s current work.  The Netherlands strongly suggested a discontinuation of the efforts to define “object and purpose”

Turning to the topic of reservations to human rights treaties, he said many believed the system of the law on reservations seems to favour participation at the expense of integrity.  As to the role of the supervisory bodies of treaties with respect to reservations, he said the efforts of those bodies were not insignificant with respect to reservations to human rights instruments, his country would like to see an appreciation of the legal effects of their work reflected in the future guide to practice on reservations.  The Netherlands strongly supported the holding of a seminar on the subject of reservations to human rights treaties, with all the supervisory bodies of those treaties.

JOANNA HARRINGTON ( Canada) said her country welcomed the Commission’s confirmation that the ability of a human rights treaty monitoring body to pronounce on the validity of a reservation did not extend the competence of that body beyond that already provided for by the constituent instrument.  Canada, however, had some concerns with the language of “rule” or “ruling”, rather than “assessment” or “pronouncement”, to describe a human rights treaty monitoring body’s view on the validity of a reservation, notwithstanding the comfort offered by the provisions of the previous preliminary conclusions (draft guideline 3.2.1).

She said Canada also welcomed the retention of a role for contracting States, or contracting international organizations, to respond to the invalidity of a reservation lodged by another State or international organization by means of objections.  A need remained for clarity with respect to the Commission’s views on article 19 of the Vienna Convention on the Law of Treaties.  Canada was cautious about the proposed role of the treaty depositary as a reviewing body for manifestly invalid reservations.  Canada questioned whether that was a useful development of the law in that area, or a route to further uncertainty.

On unilateral acts of States, she said the adoption of the guiding principles, together with commentaries, was a useful conclusion to the Commission’s work on the topic, given the vast range of governmental activities and statements that might be construed as unilateral declarations by States capable of creating legal obligations. She welcomed the Commission’s confirmation that the concept of a unilateral act was not uniform and that different views could, and did, arise among States, as to what constituted conduct covered by the designation “unilateral acts”.  She said the topic of unilateral acts was a difficult one, and noted its potential for overlap as between the principles guiding the making of obligations by treaty and those guiding the making of obligations by declaration, given the similarities between the rules of the Vienna Convention on Law of Treaties and the Commission’s guiding principles.

MA XINMIN ( China) said the function given by the guidelines to treaty bodies for ruling on the validity of reservations exceeded their usual function.  It went beyond relevant provisions of the Vienna Convention on the Law of Treaties and State Practice.  China therefore proposed the deletion of that provision.  He said China believed that the conclusion contained in draft guidelines on the subject was “overly subjective and unhelpful” to the resolution of practical problems.

He said the issue of a reservation, which needed further study, was more one of whether it might be formulated or not, rather than that of its validity or non-validity.  He also called for the deletion of a provision by which the treaty depositary should draw the attention of the relevant parties to the substance of the legal issues caused by a reservation.  On the question of terminology, he said the Commission should consider using different terms for the formulation of reservations and the validity of reservations, which were two different concepts.

He noted that with its very limited scope, the guiding principles were applicable only to unilateral acts in the strict sense, such as those in the form of formal declarations made on the subjective intention of States to assume international obligations.  Nevertheless, he added, the adoption of the guiding principles was still of positive significance to the development of international law.  It had to some extent clarified the specific State acts that might produce international obligations, and thus help to constrain the wilful acts of States and enhance stability and predictability in international relations.

WILLIAM ROELANTS DE STAPPERS ( Belgium), speaking on reservations to treaties, said the Commission’s preliminary conclusions on the topic were, on the whole, acceptable.  He thought there was no reason for the Commission to depart from the provisions of the Vienna Convention on the Law of Treaties, regarding international normative, as well as human rights treaties.  Reservations to those treaties could be generally handled by the general regime of law as codified by the Vienna Convention on the Law of Treaties.

CONCEPCION ESCOBAR HERNANDEZ ( Spain) said she appreciated that the Commission had finally opted for the use of the general term “validity” in assessing reservations.  She agreed with the spirit of the guidelines (3.1.1 to 3.1.4) provisionally supported by the Commission.  She drew attention, however, to the fact that guideline 3.1.1, which referred exclusively to reservations expressly prohibited by a treaty, continued to leave open the issue of reservations implicitly prohibited.  In connection with guideline 2.1.8 in the case of manifestly invalid reservations, the guideline introduced a progressive development element which would have to be carefully evaluated for its effect on the depositary.

Any guide to practice on reservations to treaties could not fail to incorporate a definition of the object and purpose of a treaty, she said.  As to the monitoring bodies, it did not seem logical that a supervising and monitoring body created by a treaty lacked the competence to pronounce on the validity of a reservation formulated in relation to that treaty.  Turning to unilateral acts, she said Spain shared the approach taken by the Commission and the requirement that unilateral acts must produce effects.

PATRICIA GALVAO TELES ( Portugal) said that qualifying reservations as “valid” or “invalid”, as was done by the Special Rapporteur, was premature and might be far-reaching.  Practice seemed to show that the provisions of the Vienna Convention on the Law of Treaties were sufficient and that the emphasis should be on the scope of the effects of the reservation and of objections to them, rather than on the qualification issue.  The Commission’s work on the topic was intended to be a guide to practice, and there was a clear understanding that there should be no changes in the relevant provisions of the Vienna Conventions. 

She said that the fact that a State did not object to a reservation should not necessarily be taken to mean that it considered a reservation as valid.  States had the liberty to present reservations to treaties.  The difference should be the question of the acceptance -- “permissibility/validity” -- of the reservation. 

She said she welcomed the Commission’s recommendation for an expert meeting between its Special Rapporteur and United Nations experts in the field of human rights during the Commission’s fifty-ninth session next year.

On the topic of Unilateral Acts, she said the Commission’s 10 year effort showed the difficulties of codifying international law on the subject.  The guiding principles applicable to unilateral declaration basically stressed that States might undertake legal obligations through such acts whose binding character was based on a fundamental legal principle of good faith.  Her delegation continued to believe that the role played by unilateral acts of States was rich, and full of varied effects, meeting the real needs of States and of the international community.  It would have been more useful and preferable for the Commission to study the various categories of acts which constituted an autonomous source of international law.

HIROSHI TAJIMA (Japan), speaking on reservations to treaties, said that as the permissibility of reservations differed depending upon the nature of each treaty, it might be difficult to arrive at a single definition of the concept.  Japan believed that the competence of the monitoring bodies established by a treaty should be decided in accordance with the relevant treaties of those bodies.  Holding a meeting between the Commission and United Nations experts in the field of human rights would facilitate the elaboration of both substantive and procedural parts of the articles on the topic.

On the subject of unilateral acts of States, he said Japan believed the Commission had taken a right course by concentrating on one category of those acts.  There was no need to proceed to codification under the general heading of the subject.

THOMAS FITSCHEN (Germany), speaking on reservation to treaties said that, as the Commission had rightly acknowledged, invalid reservations were still a major issue, particularly with respect to two types of treaties –- those that included human rights guarantees and those that served the fight against international terrorism.  The importance of the international norms in those fields meant that special vigilance was required to counteract attempts to undermine or call into question the laboriously adopted standards by introducing exceptions.  Germany noted with satisfaction the awareness of the issue as measured by the increasing number of objections made by States to reservations to those categories of treaties.  He said the protection of human rights was one of the areas that was regularly of relevance in connection with issues regarding reservations.

In Germany’s view, it remained doubtful whether the efficacy of human rights guarantees was ensured if the parties to a human rights instrument were in principle given a carte blanche to rewrite the provisions, either individually or collectively.  He said that it was rather the structure of normative treaties, in particular human rights conventions, which set them apart from traditional reciprocal treaties.  As long as a consensus could not be found in the International Law Commission, he said, an adjustment should at least be considered in the discussions on both the preliminary conclusions and the draft guidelines.  He said competence given to treaty implementation monitoring bodies should prevail over other mechanisms with the same purpose.

SARAH WILLIAMS ( United Kingdom) questioned the need for a special meeting of the Commission and representatives in the field of human rights.  As the United Kingdom and others had indicated in observations on general comment 24 of the Human Rights Committee, it was their firmly held view that reservations to normative treaties, including human rights treaties, should be subject to the same rules as reservations to other types of treaties.  They saw no legal or policy reasons for treating human rights treaties differently.  On the role of human rights treaty monitoring bodies, the United Kingdom considered that such bodies were only competent to rule upon the status or consequences of a particular reservation, where that power was provided by the treaty.  In all other circumstances, the United Kingdom felt such conclusions were not determinative.  It remained to the State party to the treaty to assess the validity and consequences of a particular reservation.  Ultimately, it was for the reserving State to take action to address any uncertainty.

Turning briefly to the topic of unilateral acts of States, she said the United Kingdom, as it had previously noted, saw no need for continuation of work on the topic.  It was the intention of the State in carrying out such acts that was paramount.

DIRE TLADI ( South Africa) said his country recognized the negative effect too many reservations could have on the integrity of multilateral conventions.  However, South Africa also understood the need for reservations as a means for promoting greater participation by States in multilateral treaties.  Referring to guideline 2.1.8 on manifestly invalid reservations, he questioned the appropriateness of the role granted to a depositary of a treaty, saying it went beyond the one envisaged in the Vienna Convention on the Law of Treaties.  It also raised questions about the implications and status of the related legal opinion and took the initiative away from States.

He said he was not opposed to exposing invalid reservations but rather was concerned about what could easily become an adjudicatory role being transferred to depositaries.  For that reason, South Africa was not opposed to treaty monitoring bodies expressing an opinion about the validity of reservations where the treaty gave the bodies the power to do so.

VALEIRO ASTRADI ( Italy), speaking on reservations to treaties, said the Commission would have to determine what the significance was of objections by States parties to a treaty, other than the State that made the reservation.  In the light of the answer that would be given, the Commission should revise its preliminary conclusions on reservations to treaties to normative multilateral treaties, to which chapter III of the Commission’s report referred.  He also said that the usefulness of the guidelines on the topic would seem to depend on the ability of the Commission to provide an easily understandable text to which States could refer in their practice.

He said the delegation of Italy also took note with appreciation of the adoption by the Commission of a set of guiding principles on unilateral acts of States.  While the guiding principles only dealt with cases in which a State deliberately intended to undertake legal obligations unilaterally, they did not fail to acknowledge in the preamble that legal effects were often linked to the expectations that State conduct might have raised for other States.  Certain examples to which the commentaries to the guiding principles referred could be understood as concerning the latter type of situation, or some implied agreement, rather than the unilateral assumption of legal obligations, he added.

When the Sixth Committee met again this afternoon, ANNE-LAURE DURING ( France), addressing reservations to treaties, said the guidelines adopted by the Commission were not substantially different from those presented by the Special Rapporteur.  For example, guideline 2.1.8 was only slightly adjusted from the text of 2002 and might yet give rise to legal problems concerning the references to depositaries.  Guidelines concerning the competence of treaty monitoring bodies raised related problems.

As to the invalidity of reservations to treaties, the Vienna Convention on the Law of Treaties had not resolved that issue.  It was precisely for that reason that France supported a treatment of the elements and consequences of the non-validity of a reservation, or the effect of an objection on a reservation.  The guide should not remain silent on those points.  Referring to guidelines 3.3.2 to 3.3.4, she said she agreed with the relevance of the general trend as suggested by the Rapporteur.  There were notable improvements to guideline 3.1.5 as compared to the initial proposal.  She found the principle behind guideline 3.3.3 appropriate.  She added that guideline 3.3.1 rightly emphasized that it was part of treaty law and not the law of international responsibility.

ELIZABETH WILCOX ( United States) said her country would encourage the Commission to proceed cautiously in considering what types of reservations might be invalid because they would be incompatible with the “object and purpose” of a treaty.  The Commission should also recognize that many States had been able to join treaties as a result of the ability to make certain appropriate reservations on such matters as conformity with national laws or the nature of their legal systems.  She said the Commission should carefully consider statements on the prerogatives of treaty implementation bodies to determine the validity of reservations to human rights treaties.  She noted that the Commission’s work should account for the fact that monitoring bodies should not be making determinations on reservations except in the very unusual circumstance where they had been provided that authority expressly in a treaty.

On unilateral acts of states, she said she welcomed the Commission’s decision to focus its conclusions on “formal declarations formulated by a State with the intent to produce obligations under international law”.  States should be able to make public statements without the fear that they might inadvertently be creating obligations that were binding under international law.  States should only be bound by unilateral public declarations when they intended to be bound.  She said the efficacy of the Commission’s principles lay in the extent to which they served that objective.  The revocation of unilateral declarations was a concern to the United States, which stated that a fundamental change in circumstances might be sufficient to justify the revocation of a declaration even if there was a clear manifestation of intent to be bound.

ANDRZEJ MAKAREWICZ (Poland), speaking on reservation to treaties, said that although the number of draft guidelines –- 16 -– looked impressive, it seemed as if more and more guidelines were being produced with the result that hope was being lost for a successful finalization of the instrument.  He suggested the need for more clarity in the provision dealing with the scope of definitions.  He observed that the provision to be followed in case of invalid reservations seemed controversial, and that it changed the character of the depositary, inappropriately extending its functions.  He said that according to well established customary rule, clearly codified in the both the 1969 and 1986 Vienna Conventions, the depositary was a neutral administrator of the treaty; its functions were international in character and it was under an obligation to act impartially.  The functions of the depositary were devoid of any requirement to render a judgement on the legality or otherwise of the documents entrusted to it.  The proposed provision would damage a well-established status of the depositary as a neutral administrator of the treaty.

On the topic of unilateral acts of States, he said Guiding Principles adopted by the Commission proved a restrictive approach in the Commission’s work on the subject.  The Polish delegation believed that the guiding principles would help States judge whether, and to what extent, their unilateral conduct might legally bind them at the international level.

TAMAR KAPLAN ( Israel) said draft guideline 3.1.5 did not add any substantial clarification and might even complicate the definition of “object and purpose” of a treaty.  She offered a revision to the relevant provision on the competence of a depositary to assess the validity of reservations.  The purpose of her proposed changes was to avoid an implied authorization for any monitoring body to judge on the validity of reservations.  In addition, she said, Israel would ask for clarification on the relevance of the ruling of a domestic court regarding the validity of reservation in the international law.  According to the Israeli legal system, the ruling of the domestic court affected solely the internal law, she explained.  Israel accepted the draft guideline regarding the plurality of bodies competent to assess the validity of reservations.  Nevertheless, she said that it should be taken into account.  Israel had difficulties with the provision on the role of the depositary, stating that the function was a purely technical one.  She said care should be taken in widening the scope of the functions of the depositary.

On the topic of unilateral acts of States, she said the Commission should adopt a rigid approach to determine whether officials who were not Heads of State or foreign ministers had the legal capacity to bind the State through unilateral acts.  Israeli law required officials to obtain specific and express authorization in order to involve the State in unilateral acts and declarations.  She said her Government would attribute legal significance to its own unilateral acts or those of other States only when there existed a clear and unequivocal intention to effect obligatory legal consequences.

ALAIN PELLET, Special Rapporteur on the topics of reservations to treaties and unilateral acts of states, responding to the comments from speakers, said that delegates in the Sixth Committee had the ability to influence the work of the Commission in many ways.  For example, they had made helpful suggestions on wording of drafts.  Listening to their speeches in the Committee debates on topics gave Special Rapporteurs an opportunity to “test the winds” on proposals and detect patterns in views, although sometimes, given the widely varying views of countries, it was difficult.  There was one area, though, in which there was a “deafening silence” in the Sixth Committee -- that of initiating new topics for study by the International Law Commission.  He had brought that fact up several times before in the Committee.  He stressed that the Commission was in the service of States, and it was in their interest to recommend subjects for study. 

Specifically on reservations to treaties, he said he noted the negative reaction of States to the guidelines on invalid reservations regarding expanding the role of the depositary.  He also observed that the draft guidelines on the role of monitoring bodies of human rights treaties had generated the greatest number of comments by States, and all but one had endorsed a meeting with human rights experts.

He acknowledged the slowness of the work on unilateral acts of States and said that it was partly because of the great volume of work, and partly because he had initially assumed it to be “just a nice little technical subject”.  However, he had come to realize that it was in fact a highly complex field.  It had been determined that it would not be truly helpful if the Commission rushed the project.

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