WORK OF INTERNATIONAL LAW COMMISSION RECOGNIZED AS ASSEMBLY’S LEGAL COMMITTEE BEGINS WEEK-LONG REVIEW OF 2007 ACTIVITIES

Sixty-second General Assembly

Sixth Committee

18^th Meeting (AM)

WORK OF INTERNATIONAL LAW COMMISSION RECOGNIZED AS ASSEMBLY’S

LEGAL COMMITTEE BEGINS WEEK-LONG REVIEW OF 2007 ACTIVITIES

Among Topics for Debate:  Reservations to Treaties, Shared

Natural Resources, Effects of Armed Conflicts, Expulsion of Aliens

The Sixth Committee (Legal) this morning began a week-long debate on the report of the fifty-ninth session of the International Law Commission, considered the high point of the Committee’s work during regular sessions of the General Assembly, with tributes being paid to the Commission’s role in the elaboration of international legal instruments.

Topics covered by the Commission at its split session this year in Geneva (from 7 May to 5 June, and from 9 July to 10 August)included reservations to treaties, effects of armed conflicts on treaties, expulsion of aliens, shared natural resources and responsibility of international organizations.

Alexei Tulbure ( Moldova), Chairman of the Sixth Committee, expressed appreciation for the outstanding contribution that the International Law Commission continued to make to the progressive development of international law and its codification.  He noted that consideration of the Commission’s report at each regular session of the General Assembly constituted a high point in the Committee’s work.  The presence of some Commission members during interactive discussions of the Commission’s topics would be beneficial to the Committee’s work.  Legal Advisers from capitals were also present to join the discussion with the Committee and the Commission members.

Ian Brownlie ( United Kingdom), Chairman of the fifty-ninth session of the International Law Commission, observed that it was crucial for the Commission to be provided with carefully thought through opinions of Governments on drafts and questions.  The feedback, directly or through the Sixth Committee, was central in the effective codification and progressive development of international law.

He announced that the Commission would commemorate its sixtieth anniversary session next year and planned to hold a combined meeting with legal advisers in Geneva on 19 and 20 May 2008.  This would take place during the first part of the Commission’s session from 5 May to 6 June; the second part would be from 7 July to 8 August.  The Commission had recommended the convening of national or regional meetings, focused on its work, to mark the occasion.

Finland’s representative, speaking also for the other Nordic countries ( Denmark, Iceland, Norway and Sweden), told the Sixth Committee today he supported the holding of a solemn meeting in New York, before substantive discussions and follow-ups, for the commemoration of the sixtieth anniversary session.  Noting that the Commission reached out to States and the legal community through its annual report and its website, he said both should be made more accessible to the governmental legal advisers who formed the Commission’s primary audience.  More States would also reply to the Commission’s questions if summaries were used to put issues into context.

Affirming support for the rule of law, Benin’s delegate, on behalf of the African Group, also spoke in favour of the elaboration of international instruments to help States better understand the customary and conventional aspects of issues, and thereby to create ever greater stability in rights and obligations of international relations.  Noting that the expulsion of aliens and the effect of armed conflicts on treaties were topics of special interest to the Group, he called on the Commission to take up issues that would positively affect developing countries, such as the “protection of persons in case of disasters”.

Also speaking this morning were the representatives of Austria, Argentina, Egypt, China, Bulgaria, Ireland and Denmark (also for the Nordic countries).

The International Law Commission was established by the General Assembly at its second session in 1947, with the objective of promoting the progressive development of international law and its codification (resolution 174-II).  Its 34 members, elected by the General Assembly for five-year terms, serve in their individual capacities.  They reflect broad expertise and practical experience in the field of international law, including international dispute settlement procedures.

The Sixth Committee will meet again at 10:00 a.m. tomorrow, Tuesday, 30 October, to continue its debate on the report of the fifty-ninth session of the International Law Commission.

Background

The Sixth Committee (Legal) met this morning to begin consideration of the report of the International Law Commission (document A/62/10) on its fifty-ninth session in Geneva, from 7 May to 8 June, and 9 July to 10 August this year.  The Commission examined six topics, adopting some articles and adding two new issues to its current programme.

The Commission again took up “reservations to treaties”, a topic on its agenda since 1993.  It adopted nine draft guidelines, together with commentaries, devoted to the validity of reservations.  Earlier, it had considered the eleventh and twelfth reports of its Special Rapporteur on the topic.  The Commission requested Governments to provide answers to a number of questions to help the Special Rapporteur to complete, next year, his presentation of problems posed by the invalidity of reservations.  (Chapter IV of report)

The Commission established a Working Group on “shared natural resources” to address three issues:  a) the substance of the draft articles on the law of transboundary aquifers adopted on first reading; (b) the final form that the draft articles should take; and (c) issues involved in the consideration of oil and gas.  It requested Governments to provide information on State practice, in particular treaties or other arrangements on the subject.  (Chapter V)

The Commission discussed several aspects of the topic of “expulsion of aliens”, first taken up in 2004.  These included the categories of individuals and the types of measures and situations to be covered; definition of some key terms, such as “expulsion”, “alien”, “territory of the State” and “frontier”; the question of the expulsion of nationals; rules limiting a State’s right to expel certain categories of aliens; and collective expulsion.  Seven articles were referred for drafting.  The Commission requested information from Governments on State practice on expulsion of nationals and on those with two or more nationalities, among other questions.  (Chapter VI)

On the topic “effects of armed conflicts on treaties”, the Commission adopted the report of a working group and referred certain specific articles for drafting.  (Chapter VII)

Following its examination of the fifth report of its Special Rapporteur on the topic “responsibility of international organizations” -- on its agenda since 2002 -- the Commission adopted 15 draft articles, together with commentaries.  It requested comments and observations from Governments and international organizations on articles enunciating legal consequences of an internationally wrongful act, reparation and irrelevance of rules of the organization (articles 31-45).  It drew attention particularly to draft article 43, on an obligation of members of an international organization to take measures to provide it with the means to effectively fulfil its obligation to make reparation.  (Chapter VIII)

On “the obligation to extradite or prosecute (aut dedere aut judicare)”, the Commission considered the second report of its Special Rapporteur, containing one draft article on the scope of application, as well as a proposed plan for further development.  The Commission sought information from Governments on their contemporary legislation and practice and listed areas they should cover.  (Chapter IX)

The Commission decided to include two new topics in its current programme –- “protection of persons in the event of disasters” and “immunity of State officials from foreign criminal jurisdiction”.  It established two working groups, one on the “most-favoured nation clause”, to examine the possibility of its being considered as a topic, and the other on its long-term programme of work.  The Commission also set up a planning group to consider its programme, procedures and working methods.

The Commission’s next session (sixtieth) will again be in two parts, in Geneva, from 5 May to 6 June and 7 July to 8 August 2008.

The officers of the Commission’s fifty-ninth session were Chairman, Ian Brownlie ( United Kingdom); First Vice-Chairman, Edmundo Vargas Carreño ( Chile); Second Vice-Chairman, Pedro Comissario Afonso ( Mozambique); and the Rapporteur, Ernest Petric ( Slovenia).  The Chairman of the Drafting Committee was Chusei Yamada ( Japan).

The International Law Commission was established by the General Assembly at its second session in 1947, with the objective of promoting the progressive development of international law and its codification (resolution 174 II).  Its 34 members, elected by the General Assembly for five-year terms, serve in their individual capacity.  They reflect broad expertise and practical experience in the field of international law, including international dispute settlement procedures.

ALEXEI TULBURE ( Moldova), Chairman of the Sixth Committee, in an opening statement, welcomed some members of the International Law Commission who were present.  He said he trusted that the Committee would take full advantage of their presence during the debate, and benefit from their insights on the work of the Commission.  He also acknowledged the presence of legal advisers from capitals.

Speaking for the members of the Sixth Committee, he expressed sincere appreciation for the outstanding contribution that the International Law Commission continued to make to the progressive development of international law and its codification, in accordance with Article 13 of the United Nations Charter.  He noted that consideration of the Commission’s report at each regular session of the General Assembly constituted a high point in the Sixth Committee’s work.

As in previous years, he said, a morning (this year on 31 October) had been set aside for informal consultations and interactive discussions among the members of the Sixth Committee.  The consultations would focus on specific topics currently before the Commission which would be announced later.  The Committee Chairman said the presence of the Commission members during those consultations would be beneficial to the Committee’s work.

Introduction of International Law Commission Report

IAN BROWNLIE, Chairman of the fifty-ninth session of the International Law Commission, introducing the first set of chapters of the report (Part One), announced that the Commission would commemorate its sixtieth anniversary session next year.  A commemorative meeting would be combined with a one-and-a-half-day session with legal advisers to be dedicated to the Commission’s work.  The two events would take place in Geneva on 19 and 20 May 2008, during the first part of the Commission’s session which would be 5 May to 6 June, and later from 7 July to 8 August.  The Commission had recommended the convening of national or regional meetings, focused on its work, to mark the occasion.

Earlier, the Commission Chairman said feedback from Governments, directly or through the Sixth Committee, on its drafts or specific questions was central in effective codification and progressive development of international law.  Bearing in mind the character of its work and working methods, he said it was always crucial that the Commission was provided with the carefully thought through opinions of Governments.  That was even more vital as the Commission took up topics on which emerging State practice might not be easily accessible.

He reiterated the Commission’s concern on the issue of honorariums for special rapporteurs, and he urged the General Assembly to consider the matter with a view to restoring it.  The system was stopped a few years ago.  He said the Commission relied heavily on the various legal publications of the United Nations and reaffirmed their relevance.  The Commission proposed the establishment of a trust fund to address the backlog of its own Yearbook.  To safeguard the integrity of the Commission’s wealth of material, he said guidelines had been adopted on external publication of its documents.

He acknowledged the valuable assistance rendered to the Commission by its secretariat, the Codification Division of the United Nations Office of Legal Affairs.  The Division’s involvement in the substantive, procedural and technical servicing of the Commission provided a continuous and useful interaction and feedback between the Commission and its secretariat.  He also commended the Division on its development of a website on the Commission’s work which constituted a valuable tool for research.

He then went on to give details of the first part of the report which, in addition to the introductory chapters I to III, dealt with three substantive chapters –- chapters VI, VII and VIII –- and chapter X concerning “Other decisions”.  Part two of his statement, to be presented later, would cover chapter IV on “Reservations to treaties”, chapter V on “Shared natural resources” and chapter IX on “Obligation to extradite or prosecute (aut dedere aut judicare)”.  He said several members of the Commission emphasized the importance and timeliness of the topic “Expulsion of aliens”, particularly in the light of rising phenomena of illegal immigration and refugee flows, and in the context of efforts taken by States to combat terrorism.

Statements

MARCUS LAURENT ( Finland), speaking also for the other Nordic countries ( Denmark, Iceland, Norway and Sweden), said the principal tools by which the Commission reached out to States, to international governmental and non-governmental organizations, and to international lawyers were the annual report and the website.  The valuable information in the report should be made more readily available than through the system of office documents, so that it could reach the governmental legal advisers who formed the Commission’s primary audience.  That would also contribute to a more broad-based discussion in the Sixth Committee.  And to increase the number of replies from States on issues of interest to the Commission, the background to the issues should be provided in the form of summaries of the discussions in which the issues had arisen, so as to provide context.  Also, the website should be streamlined and simplified, with its appearance enhanced.

Moving on, he said the Commission’s upcoming sixtieth anniversary would provide an important opportunity to raise awareness about the Commission and its work.  The recommendation to organize a solemn meeting in New York, to be followed by substantive discussions and follow-ups, was welcome.  For the long term, the Commission should take up the theme “subsequent agreement and practice with respect to treaties”, and should include it on the work programme as soon as possible.

With regard to the effects of armed conflicts on treaty relations, he asked why the Commission, through its Working Group, had chosen to define the term “armed conflict” rather than keeping with the term “hostilities”, as contained in the Vienna Convention of the Law of Treaties.  The principle of continuity of treaty obligations was involved and was essential for safeguarding security in legal relations between States.  The broadening of the concept to cover internal conflicts above a certain intensity threshold was welcome, as was a new formulation of article 4, concerning the grounds by which to ascertain whether a treaty should be terminated or suspended.  The intention of the parties was not always the best guide, and other criteria should be taken into account.  The decision should be made on a case by case basis.

Finally, he said a reference to the “subject matter” of a treaty in article 7, rather than “object and purpose”, would provide a practical solution for drawing up a list of treaties in the annex.  Article 6b, on the applicable law in armed conflicts, should be deleted and its substance moved to the commentaries, since it did not reflect the complexity of the issue.  The scope of the articles should not apply at present to treaties concluded by international organizations.

JEAN-MARIE EHOUZOU (Benin), speaking for the African Group, said he supported the rule of law and the elaboration of international instruments that helped States better understand the customary and conventional aspects of the matter, so as to lead to greater stability in the rights and obligations involved in international relations.

On the Law Commission’s report in particular, he said the “expulsion of aliens” was of particular interest to the Group, and that States should act in accordance with rules of international law when exercising the right to expel aliens from their territory.  The draft articles should ensure the respect of fundamental rights and freedoms of aliens and should ensure that mass expulsions were illegal.  It should also ensure that expulsion was not exercised on the basis of discrimination or for a politically motivated reason.  States should exercise their right cautiously, particularly in the case of refugees.  The humanitarian aspects that led to flight from countries should be factored in.

He said the effect of armed conflicts on treaties was also of particular interest to the African Group.  Attention should be given to the effect of internal armed conflicts on treaties, and on how foreign occupation and aggression affected contractual obligations of States.  Turning to another matter, he said international organizations should be held accountable for wrongful acts, in line with the differentiated approach between the responsibility of States for wrongful acts and that of international organizations, since they had different obligations under international law.  As for future work, the Commission should take up issues that would positively affect developing countries, such as the “protection of persons in case of disasters” and the “most favoured nations clause”.

FERDINAND TRAUTTMANSDORFF ( Austria) commended the Commission’s Special Rapporteur and the secretariat for the comprehensive study on the topic “expulsion of aliens”, which provided for a thorough analysis of national legislation.  Such analysis was a precondition for a successful codification of the topic.  With regard to the scope of the draft articles on the topic and the definition of “alien”, Austria endorsed the approach to define the concept of “alien” by using the notion “national” rather than “ressortissant”.  On the topic of “effects of armed conflict on treaties”, he reiterated Austria’s view that the draft articles on the topic should deal only with international armed conflict.  The draft articles should clearly specify whether the outbreak of an armed conflict automatically led to a suspension and termination of the treaty or only constituted a ground for invoking suspension or termination.

On the topic “responsibility of international organizations”, he said the argument that the draft articles on the topic had a level of generality which made them appropriate for most, if not all, international organizations, could only be maintained in applying a high level of abstraction.  Some of the articles might therefore run the risk of failing the reality test in the details of their application.  He reiterated Austria’s concern that every draft article taken mutatis mutandis from the corresponding draft article on State responsibility required very careful scrutiny as far as its general applicability, not only to the United Nations, but also to the different types of other international organizations, was concerned.

OSVALDO MARISCO ( Argentina) said that on the topic of “expulsion of aliens”, his delegation could not understand the need of using the French word “ressortissants”as a different category from “nationals”.  It considered the word “nationals” clearer and more generally accepted in public international law.  With regard to article 3, it considered the limits to the right of expulsion set out in paragraph 2 to be too broad and general.  He expressed concern for draft article 5 on non-expulsion of refugees.  Argentina agreed with some opinion expressed in the Commission that the proposed draft went beyond the limits of the 1958 Geneva Convention, particularly regarding the in limine determination that the receiving State would be entitled to make, regarding the purpose of a refugee’s request.

He said he agreed with a formulation in a manual of the Office of the United Nations High Commissioner for Refugees (UNHCR) which stated that the recognition of a refugee’s status did not of itself make him or her a refugee, but declared him or her as recognized for being a refugee.  The criteria used by UNHCR were particularly relevant, considering the applicability, from the very moment of submitting the request for refugee status, of principles such as non-refoulement, he said.

MOSTAFA KAMAL ( Egypt), speaking on “expulsion of aliens”, affirmed that States, while exercising the right of expulsion, should follow their obligations in accordance with the fundamental rules of international law and human rights.  However, the Commission should identify those fundamental principles referred to in paragraph 2 of article 3 of the draft articles on the topic.  The Egyptian Government implemented the provisions of the 1951 Convention on Refugees, and coordinated with the High Commission for Refugees while expelling refugees resident on its territory.

On “effect of armed conflict on international treaties”, he said Egypt respected the provisions of the 1969 Vienna Convention on the Law of Treaties.  He suggested that the Commission should study the effect of foreign occupation on the enforceability of international treaties in which the State under occupation was a party.  With regard to “responsibility of international organizations”, he affirmed the importance of a distinction being made between responsibility of States for wrongful acts and those of international organizations.   Egypt welcomed the decision of the Commission to include on its agenda the topic “protection of persons in cases of disasters”.

LIU ZHENMIN ( China) said the draft articles on “expulsion of aliens” should be extended to cover those who were within zones of immigration control, and not just those who had entered the territory of a State.  The framework of the draft principles in article 3 should be reformulated so as to make the State’s right to expel an exception clause.  The scope of protection afforded by the articles to refugees should not extend beyond that contained in the 1951 Convention on the Status of Refugees and its Protocols.  Under China’s own criminal law, expulsion was an additional applicable penalty for a convicted alien.

Moving on, he said the commentaries on the draft articles on “responsibility of international organizations” should contain more references to the legal and factual bases of the provisions, so as to be more convincing.  A study of obligations binding on international organizations would clarify the existing rules and allow for the proper address of the matter.  Internal armed conflicts should not be included in the topic on “effects of armed conflicts on treaties”, since there was a qualitative difference between the two forms of conflict and inclusion had neither legal nor factual basis.  The Working Group should continue its work on the question.  As to future work, the Commission should take up the question of “immunity of State officials from foreign criminal jurisdiction”.

EMILENA POPOVA ( Bulgaria) said she agreed with the parallel drawn between the topics of “responsibility of international organizations” and the responsibility of States.  While there were differences between the two, there were enough common elements to form a reasonable basis of universal rules.  Each set of rules should aim to add certainty and clarity to the most typical situations and thus serve as a navigation guide for grey areas and rare cases.  Future instruments on both should be comprehensive and self-contained.  Also, to prevent a split into two instruments or a shift in focus from responsibility to the conduct of a wrongful act, the responsibility of a State for the international wrongful act of an international organization should be incorporated in the draft articles on State responsibility.

On the topic of “effects of armed conflicts on treaties”, she said it would be more practical if treaties with international organizations were included in its scope.  Further, the provisions should be extended to cover treaties being applied provisionally, since the Vienna Convention could not resolve the issues involved.  The inclusion of internal armed conflicts in article 2 was a sound determination.  The most important draft article was the one dealing with the development of an indicative list of treaties that were still operative during armed conflict.

PATRICIA O’BRIEN ( Ireland) said she would address the subject of draft articles 31 to 45 of the regime for “responsibility of international organizations”.  While no article had yet been formulated, the suggestion that an “injured” State be required to recognize the international legal personality of an international organization, before that organization was obliged to make reparation, was an idea that raised important legal and practical considerations.  It might also be at odds with the 1949 Advisory Opinion on reparations of the International Court of Justice.  Further discussion on the matter by the Law Commission would be welcome.

She said more clarity was needed on the articles related to the responsibility of member States to provide resources for an international organization to make reparation.  The obligation should be included in the draft articles as a rule of progressive development, having regard to the importance of reparations to an effective regime of responsibility.  To do otherwise may suggest that States could somehow escape liability by acting collectively through an international organization.

The wording on obligation of reparation should be reformulated; and a distinction must be made between the obligations of international organizations towards their members and to non-members.  The draft articles on serious breach of obligations should not confer duties beyond the mandate of an international organization.  And finally, she said, the Special Rapporteur’s suggestion for an adjustment in the text on the diversity of international organizations should be accepted.

PETER TAKSOE-JENSEN ( Denmark), speaking for the Nordic countries on the subject of “responsibility of international organizations”, underlined their support for the Commission’s reliance on the provisions of the articles on State responsibility for work on the topic.  However, as the Commission itself had recognized, the nature of international organizations merited a number of modifications.  He said careful consideration should, in that respect, be given to the particular role and functions of organizations in international cooperation.  He said they could accept the inclusion of article 43 expressing a general principle of international law, while at the same time emphasizing that it did not suggest that a subsidiary responsibility arose for member States when the organization in question was not in a position to provide compensation for obligations.

On two questions posed by the Commission, he said the Nordic countries had preliminary comments.  On the breach of an obligation owed to the international community as a whole, the Nordic countries said there should be a right for other international organizations to make a claim of cessation and reparation to the injured party.  On the second question, concerning the right of international organizations to countermeasures, they believed that the most appropriate approach would be to echo articles 49 to 53 of the articles on Responsibility of States.

Finally, he referred to a 2 May 2007 decision of the European Court of Human Rights in the Behrami and Saramati cases which, he said, touched on some interesting issues regarding the responsibility of international organizations.  The cases concerned certain acts and commissions by the international presence in Kosovo and whether a number of European States, having provided the personnel to the international presence in Kosovo, were responsible under the European Convention on Human Rights for those acts.  He said the Court found that it was not competent ratione personae to review the complaint against those States, because the relevant acts in question were in fact attributable to the United Nations.

He said it was not clear to what extent the same result would be reached by the Court of Human Rights with regard to acts performed during other peacekeeping operations under a Chapter VII (United Nations Charter) mandate.  Decisive for the outcome would probably be the particular command and control structure, and the legal framework for each individual peacekeeping operation.  He said the Nordic countries looked forward to the future consideration of the issue of responsibility for the United Nations and other international organizations in those complex situations, and the question of striking the right balance between the responsibility of international organizations and their member States in the context of peacekeeping operations.

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For information media • not an official record