Sixty-third General Assembly

Sixth Committee

18^th & 19^th Meetings (AM & PM)

LEGAL COMMITTEE REVIEWS ISSUE OF RATIONALE FOR TREATY RESERVATIONS,

WITH CONCERN TO AVOID DISCOURAGING ADHERENCE

 

Expulsion of Aliens, Responsibility of International

Bodies among Other Topics Taken Up from Law Commission Report

Although giving reasons for reservations to treaties was not a condition under the Vienna Conventions, some conventional instruments did require States to provide such rationale, the Chairman of the International Law Commission, Edmundo Vargas Carreno, told the Sixth Committee (Legal) today as it continued its review of the Commission’s report, with a new focus on reservations to treaties, the responsibility of international organizations and the expulsion of aliens.

Mr. Vargas Carreno said the Commission had adopted a new guideline on the reasons for reservations which gave the author of a reservation an opportunity to explain and clarify those reasons and also to provide information, which might be useful towards assessing the validity of the reservation.

The representative of the Philippines agreed that the guideline could be used in correctly formulating a reservation.  But she said it should be kept in mind that reservations had been instituted into the treaty system so as to encourage States to become parties.  A wide scope of freedom was implied in the Vienna Conventions.  The contention that had been expressed that providing a reason for a reservation would not make it difficult to formulate reservations was not realistic.

Germany’s representative, speaking on the need for the guidelines to include articles on countermeasures, said that, while resort to countermeasures in response to internationally wrongful acts did not seem to constitute frequent or even established practice, such rules were needed for international organizations to be able to fulfil mandates.  But the use of countermeasures should be restricted to avoid “sowing complexity and opacity into international relations”.

Before taking up three new topics in the Commission’s report, the Committee concluded its review of the portions of the Commission’s report dealing with shared natural resources and the effects of armed conflicts on treaties.

The representative of the United States, among others, said the articles on the effects of armed conflict on treaties preserved the reasonable continuity of treaty obligations during armed conflict, took military necessities into account and provided guidance to States.  However, he said, the definition of “armed conflict” was of concern, as was the conflation of “occupation” and “armed conflict”, so the proposed articles should make clear that the conflicts covered were the same as those covered by the Geneva Convention.

When considering the same issue, Ghana’s delegate said the focus should be on the promotion of regional integration, and on the situation of failed or fragile States unable to honour their treaty obligations.  Rather than taking punitive measures, perhaps compliance should be encouraged, so as to least disturb the stability of treaty relations.

Iran’s representative said a clear distinction should be made between situations when States unlawfully used force and when measures of self-defence were taken.  States using force unlawfully should not benefit from the consequences of their acts. 

Also speaking today, as the Committee ended its discussion on shared natural resources and the effects of armed conflict on treaties, and began its review of reservations to treaties, the responsibility of international organizations and the expulsion of aliens, were the representatives of Nigeria, Uruguay, Russian Federation, New Zealand, Slovenia, Israel, Lebanon, Japan, Greece, Indonesia, Cyprus, France, Portugal, Netherlands, Austria, Sweden (for the Nordic countries), Belarus, Republic of Korea, China, Argentina, Estonia, Czech Republic and Italy.

Finally today, the representative of Greece introduced a draft resolution on criminal accountability of United Nations officials and experts on mission.

The Committee will meet again at 3 p.m. tomorrow, Thursday, 30 October, to continue its review of the Commission’s report and to hold an interactive dialogue on immunity of State officials, responsibility of international organizations and the Most Favoured Clause.

Background

The Sixth Committee (Legal) met today to continue its consideration of the report of the International Law Commission, with a focus on transnational aquifers under the item on shared natural resources and on the effect of armed conflicts on treaties, among other matters.  The Committee was also expected to begin considering three new themes:  reservations to treaties, responsibility of international organizations and the expulsion of aliens.  (For background on the report, see Press Release GA/L/3351 of 27 October.)

The Committee was today also expected to hear the introduction of a draft resolution on criminal accountability of United Nations officials and experts on mission (document A/C.6/63/L.10).  By that draft, the General Assembly would strongly urge States to take all appropriate measures to ensure that United Nations Officials and experts on mission who committed crimes were brought to justice and that such crimes did not go unpunished.  The Assembly would also strongly urge States to consider establishing jurisdiction over crimes committed by their nationals while serving with the United Nations.  The Secretary-General would be urged to take measures to strengthen existing training on standards of conduct, including through predeployment and “in-mission” induction training.  The United Nations would be urged to cooperate with States exercising jurisdiction to provide them with information and material for the purposes of criminal proceedings.

Statements on Aquifers, Treaties in Armed Conflict, Other Matters

EBENEZER APPREKU ( Ghana) said the language of the articles on aquifers should be adjusted for uniformity with regard to concepts related to “utilization”.  His country’s water policy reaffirmed the principles of sovereignty and of solidarity, underpinned by a commitment to good neighbourliness.  The sharing of natural resources without necessarily connoting co-ownership was a reminder of interdependence and of the responsibility to cooperate for a reasonable and equitable utilization of natural resources.  The principles of friendly relations and cooperation were implemented through the establishment of regional and subregional mechanisms, which could serve as proactive tools for collective management of shared resources, and also as early warning and trouble-shooting mechanisms.

In his region, he said, the riparian countries involved with the Volta River had concluded a 2007 convention that established the Volta Basin Authority; this was now charged with management of the Volta as an international river, and would have jurisdiction over ecosystems linked to the basin.  That six-party convention had stemmed from a 2002 bilateral agreement between Ghana and Burkina Faso, and other bilateral agreements for integrated water resource management, in keeping with the regional action plan towards that end of the Economic Community of West African States (ECOWAS).  A strategy needed to be adopted, he went on, for rationalizing the relationship between the watercourse convention and the draft articles, so as to establish a closer link between categories of international and transboundary aquifers and thereby make the principles involved more coherent, predictable and user-friendly.  Also, the principle of good neighbourliness called for more than just avoiding harm; it called for the promotion of cooperation and the proposed articles should reflect that approach.

Moving on to the effect of armed conflicts on treaties, he said attention should be given to treaties which were intended to end armed conflict, and their implications for third-party guarantors of such agreements.  In addition to ceasefires and other peace agreements, the unique position of the United Nations Charter in post-conflict treaties could be involved.  The effect of armed conflicts on treaties aimed at promoting regional integration should also be considered, along with the situation of failed or fragile States unable to honour their treaty obligations.  Rather than taking punitive measures, he added, perhaps compliance should be encouraged, so as to least disturb the stability of treaty relations.

He said attention should also be given to treaties governing international transportation, such as air service agreements, with regard to the air traffic disruptions caused by outbreaks of armed conflict in a country with an international aviation corridor.  Consideration could be given to the degree of responsibility to be imposed on a State to whom the cause of the armed conflict could be attributable, especially where the victim State was not interested in suspending or terminating the treaty.  Should the scope or duration of conflict make a difference?  What about a formal declaration of war?

IFEYINWA ANGELA NWORGU ( Nigeria) said she supported the recommendation for the draft articles on aquifers to be annexed to an Assembly resolution and commended to States for guidance in making bilateral and regional arrangements for managing transnational aquifers.  A Regional Action Plan for Integrated Water Resources Management, already in place in the West African subregion, dealt in part with the management of transboundary basins.  Furthermore, there was merit in the decision to leave for later the question of elaborating a convention based on the articles.  Time was needed to resolve policy considerations that would arise between negotiating parties, and to define the relationship that should exist between the articles and other international instruments, particularly the Law of the Sea Convention and that on watercourses.

The Commission’s work on aquifers, she said, should be treated independently of any work to be done with regard to oil and gas.  The principle of equitable and reasonable utilization of aquifer systems, as set out in draft article 4, should be read in conjunction with article 3 relating to the principle of the sovereignty of aquifer States.

On the effects of armed conflicts on treaties, she said the draft articles were intended to apply to situations where at least one of the parties to a treaty was a party to an armed conflict, and their premise was the basic principle of continuity of treaty relations.  There was merit to the recommendation that the articles be transmitted to Governments for comments and observations.  States should provide that information without delay, so that the Law Commission could continue further work on the subject.  The Commission should also consider the effects of armed conflicts on treaties involving international organizations; that would afford the international community a wider overview of the subject, while also contributing to the progressive development and codification of international law.

GUSTAVO ALVAREZ ( Uruguay), on the issue of shared natural resources, said his country possessed significant experience in managing aquifers with other countries of the region.  There were important similarities between the “fuels regime” and aquifers, and there should be a more detailed study of the fuels regime before the adoption of two separate texts.  The draft articles on the matter, he said, should take the form of guidelines or model articles for consideration.  He commended the “wisdom” in article 3 on the sovereignty of States, as well as in article 19 on the ability to enter into regional agreements.

Since this was not a binding text, he continued, it was difficult to speculate on the relationship with other texts on the management of this type of resource.  However, the articles could be used by States as recommendations to complement existing agreements in force.

SOPHIA SARENKOVA ( Russian Federation) said the text of the articles on shared natural resources should be annexed to a draft resolution.  Furthermore, States should form multilateral and bilateral agreements and the question of a convention should come up later.  Overall, the draft articles were well balanced and confirmed State sovereignty over resources, as well as the reasonable utilization and protection of these resources.  However, sharing oil and gas resources needed to be handled separately from water.

Turning to the draft articles on effects of armed conflicts on treaties, she said she intended to take the full time, until 1 Jan 2010, to prepare commentaries on the issue.  The main “plus” of the articles, at present, was the balanced approach they took towards the various situations of States.  They also did not promote the weakening of treaty provisions in the case of an armed conflict.  However, she went on, the question of whether internal conflicts should be included in draft articles deserved further consideration.  She agreed that the draft articles should cover parties to armed conflicts and third States, but thought the articles should be extended to include the treaties of international organizations as well.

The list of categories of treaties annexed to the articles was useful, but further thought should be given to this list.  She said she had doubts, for instance, about including multilateral law-making treaties in the list, or as an independent entity.  She also agreed with the procedures for determining the susceptibility of treaties to suspension, termination, or withdrawal, noting that applying the Vienna Convention on the Law on Treaties would not be appropriate here.  Lastly, she noted that a distinction between those States expressing a right to self-determination and aggressor States had to be made.  The aggressor State should not be able to benefit from a situation it had illegally created.

On additional topics proposed by the Commission, she said she supported the inclusion of “treaties over time”.  Also, she shared the concern of the Law Commission on the provision of funding for Special Rapporteurs.  The General Assembly could take a decision on these matters, which might provide a solution to help place new topics on the agenda of the Commission.

SCOTT SHEERAN ( New Zealand) emphasized that States needed adequate opportunity to consider and obtain instructions on the Law Commission’s work, which was increasingly varied and complex.  He urged the Commission and the Secretariat to explore ways of providing a longer time period between the availability of the Commission’s report and the beginning of the Sixth Committee’s debate.

On the Commission’s long-term programme of work, he said he welcomed the establishment of the study group on the “most-favoured-nation clause” and looked forward to receiving further guidance from the study group on “treaties over time”.

He said the draft articles on shared natural resources were not of immediate relevance to New Zealand, given its geographic isolation, but given the highly technical aspects of the subject, the Commission should be congratulated for enlisting the assistance of scientists, administrators and experts in water law and management.  The draft articles represented a good balance of the competing interests at stake in the use and preservation of “this vital but increasingly scarce resource”.  He said he agreed with the two-step approach recommended by the Commission on the form the articles should take.  Given the specific and unique features of individual aquifers, transboundary aquifers were best managed at the regional or local level; he was yet to be persuaded that it was useful to try to settle firm rules that would apply to all shared aquifers.

On the effects of armed conflicts on treaties, he said the revised draft on the matter was heading in the right direction.  He was pleased that internal armed conflicts were included in the definition, and that the intention of the parties in draft article 4 had been removed.

MARK SIMONOFF ( United States) said the Commission’s recommendation with regard to the articles on aquifers was a prudent compromise towards future action.  Context-specific arrangements were the best way to address pressures on transboundary groundwaters, since there was still much to learn about transboundary aquifers and there was wide variation between specific aquifer conditions and State practice.  While articles clearly went beyond current law and practice, and while a recommendatory, non-binding set of principles would have been preferable, as had been done in the case of liability for transboundary harm, the Commission’s recommendation for States to use the articles in context-specific bilateral and regional arrangements was a helpful approach.  Though they went beyond current law and, therefore, did not represent customary international law, the articles could still provide helpful guidance and States should look to them for that purpose.  The United States had reservations about further discussion of the possibility of a treaty, and did not think it would be productive for the Commission to consider matters related to transboundary oil and gas resources.

On the effects of armed conflict on treaties, he said the approach in the articles preserved the reasonable continuity of treaty obligations during armed conflict, took military necessities into account and provided guidance to States by identifying factors relevant to determining whether a treaty should remain in effect in the event of armed conflict.  However, the definition of “armed conflict” was of concern, as was the conflation of “occupation” and “armed conflict”; the articles should make clear that the conflicts were those that were covered by the Geneva Convention.  As to the final form the articles should take, he said that if they were not to be binding, the so-called “savings clause” should be reconsidered.

He said he had concerns about two new topics on the Law Commission’s long-term agenda -- the topic of “most favoured nation clause” did not lend itself to progressive development or codification, requiring a case-by-case approach, and as for the proposed work on treaties and practice, what exactly would the Commission study?  The topic was potentially large in scope and implicated many subject areas; it did not seem sufficiency concrete and suitable for progressive development and codification.  There seemed to be “no pressing real-world issues” necessitating the work.

SIMONA DRENIK ( Slovenia) said the articles on aquifers presented a beneficial contribution to the codification and progressive development of international law, particularly environmental law, and especially in the sensitive issue of a possible emerging water crisis.  A comprehensive, cooperative approach should address the utilization, protection and management of water resources.  The decision to consider aquifers separately from oil and gas was appropriate.

As set out in the 1972 Stockholm treaty on the environment, States had a right to exploit natural resources but also had the responsibility to ensure their activities did not harm the environment of others.  The proposed two-step approach with regard to the form of the articles was welcome.  However, the Legal Committee should elaborate whether the second step should end in a treaty or in a “soft law form”, such as a declaration.

On the effects of armed conflicts on treaties, she said the scope of the articles should be studied, to ensure the legal certainty and legal stability of international treaties.  While the articles were independent of the 1969 Vienna Convention on the Law of Treaties, they should take the convention’s “customary nature” into account.  There should be no separate definition of armed conflict since the notion was contained in the primacy of international humanitarian law.

She commended the commemorative event this year to mark the sixtieth anniversary of the International Law Commission, noting that, in keeping with the observance, a symposium on the Commission had been held by her country’s national law association just last week.  She said the coherent development of international law could be achieved only by enhanced cooperation between international courts, tribunals and institutions, and between them and States.  The Commission’s approach that all States were subject to the primacy of law was particularly commendable.

With regard to the relationship between the Law Commission and the Sixth Committee, she said greater engagement with legal advisers was necessary.  Debate in the Committee would be more focused if issues and chapters were introduced separately, and the introduction should focus on issues on which the Law Commission needed guidance or input from States.  Special Rapporteurs could then be more involved in the debates, and could also evaluate the commentaries.

EHUD KEINAN (Israel) noted that groundwater formed the major part of water resources required to sustain the world population; when formulating rules regarding the resource, the susceptibility of aquifers and aquifer systems to pollutants, as well as the length of time it took for aquifers to clean themselves as compared to surface waters, had to be taken into account.  He commended efforts to regulate activities that could harm an aquifer, and he called for modifying the language in article 11 so that it clearly applied to “discharge and recharge zones” that existed outside the territory of the aquifer State concerned.  The Law Commission should embrace the treatment of two particular matters:  the principles of equitable and reasonable utilization of aquifers, and the obligation not to cause significant harm to other aquifer States.

He said that in light of the technology currently available which allowed for the artificial injection of water into aquifers, there might be some merit towards advancing the proposition that a State which had injected water of an accepted quality into an aquifer should receive a greater apportionment of the water from that aquifer.  While draft articles served as necessary guidelines for aquifer States, he said he was not convinced that it was appropriate to adopt the draft articles in the form of a convention.  In addition, transboundary oil and gas resources should be treated separately.

On the topic of effects of armed conflicts on treaties, he suggested adding the term inter alia, or some other qualifying description, to draft article 4 on the matter, in order to ensure that the indicators of susceptibility to termination, withdrawal or suspension were guidelines and not exhaustive.  Also, the list of treaty categories subject to continuation during armed conflict was problematic.  He was not convinced that the transfer of the list to the annex resolved difficulties; a list of relevant criteria or general criteria would suffice.  Additionally, he remained unconvinced that the drafting of article 15 was satisfactory; although it established that a State committing aggression may not terminate, withdraw from or suspend a treaty for its own benefit, it was not clear that the State which had committed aggression in one context would be prevented from concluding a treaty as a consequence of another armed conflict in a different context.  In an extended conflict, other factors might also come into play.  Therefore, the question of possible benefit to an aggressor State should be a relevant factor, but not necessarily a decisive rule.

NOEL FATTAL (Lebanon) said the codification of the work by the Commission should be described as “ongoing” rather than “progressive”, as it was quite complex.  In the draft articles on transboundary aquifers there was talk only of water that could be extracted, not water when it was mixed with other substances.  Many States had referred to the matter as an economic one, however, with groundwater comprising up to 97 per cent of total water resources.  It was urgent to manage the situation.

He said scientists who contributed to the issue, also served as linguists.  For instance, the term “utilization” was preferred to “use”, since it covered the mode of use; the term “impact” had a broader meaning than “harm” or “damage”, which was more precise.  These linguists kept in mind who would be reading the text.  The term “aquifer” in article 2 was precise enough to leave no ambiguity for scientists and groundwater administrators.  He reiterated that ethical, scientific and linguistic considerations were brought together when forming the draft articles.

On the scope of the draft articles, he said it was true that oil and gas were economically important matters, but for many years there had been talk of “water wars” and drinking water being privatized.  Water was a human need, but an industrial and commercial good as well.  Those who specialized on the issues should work together in the way the Law Commission worked with scientists of the United Nations Educational, Scientific and Cultural Organization (UNESCO).  A convention should come much later, he said, noting how many years it took before the Vienna Convention on the Law of Treaties had entered into force.

NOBUYUKI MURAI(Japan), speaking on the draft articles on the effects of armed conflicts on treaties, said the definition of “armed conflict” in the articles was a circular one, since it did not specify what situations fell within its scope.  Also, the list of treaty categories contained in the annex did not appear to be logically arranged; the Commission should make further efforts to elaborate the list.

He said draft article 13, although it was based on the text of the resolution of the Institute of International Law at the Helsinki Session in 1985, lacked the clause “subject to any consequences resulting from a later determination by the Security Council of that State as an aggressor.”  The commentary to the article stated that the article had to be understood against the background of the application of the regime under the United Nations Charter, as contemplated in articles 14 and 15.  However, it was doubtful whether articles 14 and 15 properly covered what the “subject to” clause was intended to achieve.

In addition, although article 15 referred to the obligation of a State committing an aggression not to terminate the operation of a treaty, it did not refer to the consequences for terminating these treaties, as decided by the Security Council.  With regard to draft article 16, he said it was not clear why the law of neutrality, alone, was treated in a separate article, rather than being included in the indicative list of treaty categories.

MARIA TELALIAN ( Greece), speaking on the effect of armed conflict on treaties, said she attached great importance to the codification exercise.  The success of the Commission’s work depended on information provided by States on practice.

Reviewing the articles individually, she said the articles as a whole should relate to contemporary types of armed conflict, including internal ones.  Article 2 should, therefore, make explicit reference to both international and non-international conflicts, in order to add legal clarity and consistency to the entire set of articles with respect to their scope of application.  The scope of the Commentary in respect to article 5 appeared limited to British and United States practices only; reference to doctrinal views stemmed only from common law countries, where practice and doctrine were easily available.  The Commission should make a more extensive reference to doctrine and practice from civil law countries as well.  A questionnaire could also be established whereby the Commission sought information on past and recent State practice on the issues.  Clarification on the operation of a treaty “in whole or in part” would be appreciated.

She said the illustrative list of categories presumed to remain in operation during an armed conflict was useful.  There could be other treaties which, on the basis of subject matter, could be included, and they should be included in the scope of the articles.  The “regime of notice” could not realistically be applied under the conditions covered.  State practice should be examined.  Clarification on the “no prejudice” clause, related to notification, would also be appreciated.  The suspension of operation of a treaty when a State was exercising the right of self-defence should also apply with regard to termination and withdrawal.  The Commission’s views on the relationship between articles 17 and 18 on suspension and resumption of treaties would be appreciated.

MOHAMMED HERY SARIPUDIN ( Indonesia) said the dialogue between the Sixth Committee and the Law Commission could be further enhanced by maintaining the practice of informal consultations, in the form of focused discussions on specific items on the Commission’s agenda.

On the issue of shared natural resources, he said the articles on aquifers should eventually become a legally-binding convention, but the two-stage approach was appropriate.  Further deliberations and negotiations were needed on the matter and adequate political support was required.  Because that second step was still in the future, no article had been formulated on either the relationship of the articles to other instruments, or the settlement of disputes.  When formulating the convention, the structure of the articles should take into consideration the need to include general principles and obligations that applied to all States generally.

Welcoming the Commission’s work on the effects of armed conflicts on treaties, he said the scope should be limited to conflicts between States.  That was in conformity with the Geneva Convention to which the new articles applied.  The scope should not apply to internal conflicts, which did not necessarily affect treaties concluded between two sovereign States on the basis of their free intention.  The annex containing the indicative list of categories of treaties was consistent with the Vienna Conventions.

He said his country was a particularly firm proponent of the rule of law and the Commission’s report on the matter was a valuable contribution.  It should be noted that the Commission cooperated with other international agencies to promote the rule of law.  In its principal role of formulating law, the Commission also worked closely with States.

ESHAG AL-HABIB ( Iran) said the International Law Commission’s mandate was to supplement, not to contradict or prejudice, the existing international instruments regarding the law of treaties, particularly the 1969 Vienna Convention on the Law of Treaties.  However, the draft articles on the effects of armed conflicts on treaties did not seem to duly reflect the achievements of international law with respect to the legal stability and continuity of international boundaries.  He pointed out that the treaty which established a boundary belonged to the category of treaties creating permanent regimes or States; all States were bound to these treaties.  Therefore, even a fundamental change in circumstances, such as an armed conflict, may not be invoked as terms for terminating or withdrawing from these treaties.

Nevertheless, he said, the Commission did not highlight the exceptional status of those treaties.  Although it was true that “treaties establishing or modifying land and maritime boundaries” were included in the list of treaties annexed to the articles, the mere reference to such treaties in the annex would not obligate parties to an armed conflict.  Rather, a specific reference to this treaty category should be included in draft article 3, to make clear that treaties establishing boundaries were an exception.

He said he also opposed the inclusion of non-international armed conflicts in the draft articles.  In that regard, the draft articles on the responsibility of States for internationally wrongful acts, adopted by the Commission in 2001, could cover situations resulting from the non-application of treaties in a non-international armed conflict.  Regarding draft article 4, he cautioned against the introduction of “the nature and extent” of the armed conflict as indicating susceptibility to the termination or suspension of treaties, noting that the term “withdrawal” was inappropriate since it contradicted draft article 3.  The inclusion of such an indication might give the wrong impression that “the more intensive and expanded an armed conflict becomes, the more probable it would be that the treaty relations between the belligerent States might be terminated or suspended.”  He said he also regretted that draft article 8 made no distinction between different categories of treaties.  This could be interpreted as an invitation to a State engaged in armed conflict, intending to terminate or withdraw from a treaty, to declare its intention to open hostilities.  There was inconsistency between this provision and the annexed list.

Supporting the inclusion of draft article 15, he said a clear distinction should, however, be made between the situations of unlawful use of force by a State, and that of self-defence.  States using force unlawfully should not benefit from the consequences of their acts.  The “without prejudice” clause contained in article 14 was not only superfluous, but dealt with subject matter that fell outside the mandate of the Commission. That clause should be deleted.

When the Committee met this afternoon, it concluded its discussion on shared natural resources and the effects of armed conflict on treaties.

POLLY IOANNOU (Cyprus), speaking on the topic of the effects of armed conflicts on treaties, said she supported the general thrust and logic of the draft articles, which reflected the principle of continuity of treaties during an armed conflict, and the need to safeguard legal order and stability regardless of such hostilities.  In that regard, she also supported draft article 9, which preserved the duty of a State to fulfil its obligations under international law independently of a treaty, as well as the inclusion in article 2, of international and non-international conflict.  While this broad scope made the codification exercise more demanding, it must be an exercise as comprehensive and far-reaching as possible.  Furthermore, she agreed with suspending treaties if they were incompatible with a State’s right to self-defence, as in article 13, and believed that the scope of the article should also extend to situations in which the State concerned intended to terminate or withdraw from a treaty.  Another factor inducing susceptibility to termination, withdrawal or suspension of a treaty was the material breach of the treaty by one of the belligerent parties.

Continuing, she agreed that, as set out in article 15, the aggressor State may not terminate, withdraw from or suspend a treaty if such action would benefit that State.  Considering it to be non-exhaustive, she supported the list of treaty categories that could not be affected by armed conflict.  Two areas of the draft articles, however, required clarification:  the different effects of armed conflict on treaty relations among belligerent States and belligerent and non-belligerent States, and the mechanism for resumption of operation of suspended treaties.  Regarding the former, while treaty relations among belligerent States deserved priority attention, the treatment of non-belligerent States must be differentiated.  The possibility of interruption of treaty relations with third States would merit more careful consideration.

MRS. EDWIGE BELLIARD ( France) said she hoped the productive exchanges during the Law Commission’s sixtieth anniversary commemoration this year were kept up.  She said she welcomed the completion of the Commission’s work on the question of transboundary aquifers, as well as the adoption of the draft articles relating to the effects of armed conflicts on treaties.  She endorsed the Commission’s recommendation on the topic of aquifers that the General Assembly decide on any follow-up projects on the matter.  By allowing States time to test their own implementation of these articles, the Assembly could better assess, during the second phase, the opportunity to draw up a general convention on the law of transboundary aquifers.

Taking up the question of the immunity of State officials from foreign criminal jurisdiction, she said she subscribed to the Special Rapporteur’s proposal to include all State officials in the scope of the study and to not address the question of family members of State officials.  Immunities for members of diplomatic missions and consular posts, State officials in or at international organizations and special members of missions did not fall within the framework of this topic.  The subject, she pointed out, must be limited to the immunity of State officials from foreign criminal jurisdiction and not expanded to review the question of immunity from jurisdiction in the State of nationality of the official in question.  It would also be useful for the Commission to review not only the immunities of serving officials, but also the immunities of officials once they were no longer in office.  In addition, there must not be confusion between universal jurisdiction and immunity.  She said the European Union was interested in any review of the effect of immunity in the pre-litigation phase and would favour a study of the Commission’s inclusion of the question of the inviolability of State officials.

On the topic of the expulsion of aliens, she said holding dual or multiple nationalities did not justify different treatment from other nationals; thus, the principle of non-expulsion of nationals must also apply to these two groups.  A separate draft article on this topic was not necessary.  Concurring with the Special Rapporteur, the question of loss of nationality, or denationalization linked with deportation, was not grounds for drawing up a specific draft article.  It would be sufficient to refer to relevant rules in the commentaries.

She said “extremely meticulous deliberations” on the topic of reservations to treaties prompted the Law Commission to temporarily adopt a large number of draft guidelines, which would contribute to the exhaustiveness of a guide.  But, in particular, the distinction between reservations to treaties and interpretative declarations should be borne in mind when examining reactions to these reservations and declarations, and their respective effects.  Although he knew that the system of reservations, acceptance and objections adhered to the rules of treaty law, the same was not entirely true with respect to interpretive declarations and reactions to them, which sometimes came within a broader context than in a single treaty.

She said that classifying different reactions to the interpretative declarations seemed completely acceptable and included different hypotheses considered in practice to be silence, approval, opposition and redefinition.  These types of reactions did not, however, raise the same difficulties.  With regard to silence, an affirmative response could be proffered from the question on whether there were circumstances in which silence in response to an interpretative declaration could be construed as acquiescence.  Nevertheless, the acceptance of an interpretative declaration could not be presumed and inferred from silence.  In the end, everything was a question of circumstance.

However, she said, she did not believe that silence, when it did not constitute acquiescence to an interpretative declaration, could be called upon to play a legal role.  In any case, the option open to contracting States to clarify or specify the meaning of a treaty, or its provisions through such declarations could not be forgotten.  She also believed that it should be possible to stick to a general reference to customary rules on the interpretation of treaties.

Reactions to interpretative declarations, she added, could not be “straitjacketed” in formal or substantive rules.  There was a certain inherent flexibility in the system of interpretative declarations and reactions they produced.  Lastly, she was interested in the Law Commission’s recent work on treaties over time, particularly the practices and agreements subsequent to the treaties.  This could be particularly useful to specify the characteristics of customary rule on interpretation of treaties.

LUIS SERRADAS TAVARES ( Portugal) said he continued to have doubts that the topic “most-favoured-nation clause” was appropriate for codification or the progressive development of international law, although he recognized the Commission’s interest in including “treaties over time” in its long-term programme of work.  He said he noted with satisfaction the effort to make the Commission’s report more “user-friendly” and to revitalize the debate over the Commission’s work.  However, the interaction between the Commission and Governments should be further enhanced.  In particular, Government intervention in the Sixth Committee should be available to Commission members, namely to Special Rapporteurs.  A larger availability of documentation related to the Commission’s work and improvements to the Commission’s website were to be encouraged.

Turning to the Law Commission’s work on shared natural resources, he said the solutions presented in the draft articles were well balanced and in line with contemporary international law.  The final form of the draft articles on transboundary aquifers should be an international framework convention.  In that regard, the two-step approach proposed by the Commission, and its recommendation to the General Assembly to consider the elaboration of a convention, was welcome.  Noting the similarities between groundwater and oil and gas, from both legal and geological points of view, as well as the relevance of the matter in contemporary international relations, the Commission should now turn its attention to the subject of oil and gas.

On the effects of armed conflicts on treaties, he said he was pleased that some of Portugal’s past concerns had been progressively met in the draft articles.  However, enlarging the scope of the topic to situations where only one party to a treaty participated in an armed conflict, and to situations of internal conflicts, was not the best approach.  Those situations were already adequately dealt with by the provisions of the Vienna Convention on the Law of Treaties.  In addition, although an aggressor State could not be placed in the same position as a State exercising its right to self-defence, this topic must remain within the framework of the law of treaties.  In that regard, a cautious approach was advisable to binding a definition of “crime of aggression” to the draft articles, as it was in article 15, since it was already being addressed by a body of the International Criminal Court.

LIESBETH LIJNZAAD (Netherlands), noting that her country was one that shared many natural resources with other States, said the completion of the work on the draft articles on the law of aquifers was the first tangible result of the Law Commission on the item of “shared natural resources”.  She looked forward to more such tangible results, while pledging support for the main thrust of the draft articles on the law of aquifers.

However, she continued, she regretted that most of the observations and comments of the Netherlands and other States had not been followed.  In particular, the Netherlands had made comments on the obligation to discuss compensation if significant harm was caused, in spite of compliance with the duty of diligence; the obligation to refrain, upon request, from implementing or permitting the implementation of the planned activity during the course of consultations; and the obligation to provide scientific, technical, logistical and other cooperation to States experiencing an emergency.

Notwithstanding these omissions, she said, the Netherlands was supportive of the two-step approach for consideration of these draft articles, and stood ready to engage in negotiations on the adoption of a resolution on the matter during the current session of the Assembly.

Turning to the matter of the effects of armed conflicts on treaties, she said that during the previous Assembly session, her country had stated its recognition of the theoretical importance of this topic, yet was not convinced of the need to address it; recent armed conflicts had not led to great problems in terms of the law of treaties.  She said she, therefore, not only questioned the practical relevance of the draft articles, but questioned whether a reconsideration of them would really contribute to the promotion of security in legal relations between subjects of international law.

She said she was concerned about the scope of the new topic proposed by the Law Commission, “treaties over time”.  It would be difficult to finish this ambitious and very broad plan in this five-year period.  She urged the Law Commission to reconsider the scope of the project, and to strive for results of a practical nature.  The project also would be undesirable if it led to a reconsideration of the existing law of treaties; except for situations in which a treaty was concluded for a limited amount of time, the intention of the parties to a treaty would be that it would last indefinitely.  Furthermore, the understanding was that a treaty would be in force, and would necessarily continue to exist in spite of changing circumstances, developing interpretations or subsequent practice.  While there was an understandable academic interest in the subject matter, one might also wonder what exactly the issue was.

On the “most-favoured-nation clause”, she called for caution when dealing with this subject, which might require broader analysis.  The understanding of this clause was not just a matter of international law but, equally, of more specialized international economic law.  Since most of the relevant case law was confidential, limited material might be available on this proposal.

Introduction of Resolution

The representative of Greece introduced a resolution on criminal accountability of United Nations officials and experts on mission (document A/6.6/63/L.10).

Law Commission Chairman’s Introduction of Further Topics

EDMUNDO VARGAS CARRENO, Chairman of the International Law Commission, introduced further parts of the Commission’s report on chapters VI -- “reservations to treaties”; Chapter VII -- “responsibility of international organizations”, and Chapter VIII -- “expulsion of aliens”.

On Chapter VI, he began by referring to the 23 guidelines dealing with formulation and withdrawal of acceptances and objections, as well as the procedure for acceptances of reservations to treaties.  He said that although giving reasons for reservations was not an additional condition for validity under the Vienna Convention regime, some conventional instruments did require States to provide rationale for their reservations.  For instance, guideline 2.1.9 gave the author of the reservation an opportunity not only to explain and clarify the reasons why the reservation was formulated, but also provided information that would be useful in assessing the reservation’s validity.  Furthermore, guidelines 2.6.5 to 2.6.15 concerned the formulation of objections.  Guideline 2.6.5, in particular, stated that the author of an objection may be any contracting State or international organization entitled to become party to a treaty.  However, legal effects would be realized only when the entity had expressed its consent to be bound by the treaty.

He said guideline 2.6.8 filled a gap in the Vienna Conventions which, while providing for the possibility of precluding the entry into force of a treaty between the reserving and objecting States, was silent about the time at which the objecting State or organization must express its intention to oppose the entry into force of the treaty.  Moreover, guideline 2.6.13 relayed that the time period for formulating an objection included both the 12-month period within which contracting States or organizations could make objections and the time period terminating on the date which these entities, not previously having contracting status, expressed their consent to be bound by the treaty.  Guidelines 2.6.14 and 15 dealt with conditional and late objections.

Continuing with the guidelines on reservations to treaties, the Chairman said guidelines 2.7.1 to 2.7.9 dealt with the withdrawal and modification of objections to reservations.  Noting that this issue was addressed “curiously” in the Vienna Conventions, it was clear from the travaux preparatoires that, in principle, the withdrawal of objections ought to follow the same rules as the withdrawal of reservations.  These last guidelines concerned the form and procedure for withdrawal, the effects and time of withdrawal, partial withdrawal and the possible widening of the scope of an objection.

For example, he said, guideline 2.7.1 stated that an objection could be withdrawn at any time, while 2.7.2 provided that the withdrawal of an objection must be formulated in writing.  Another guideline -- 2.7.4 -- established that the withdrawal of an objection was considered to constitute an acceptance of the reservation.  Furthermore, according to guideline 2.7.5, the withdrawal of an objection became operational only when notice of it had been received by the reserving State or international organization and guideline 2.7.7 dealt with partial withdrawal of an objection, while 2.7.9 addressed the problem of the widening scope of an objection.

On matters other than the guidelines, he said he welcomed replies to the four questions on “reservations to treaties” set forth in Chapter III of the Commission’s report.  Those questions referred to reactions to, and consequences of, interpretative declarations.

Turning to Chapter VII of the report, the Law Commission chairman said the eight draft articles adopted by the Commission in this section would already be familiar to the Sixth Committee, since they closely corresponded to provisions in the equivalent chapter of the articles on State responsibility.  The Commission did not see any reason to deviate from the language used in the State responsibility articles.  As practice in this area concerned mostly States, it might be the case that these requirements would be of more limited relevance to international organizations than they were in inter-State relations.

Nevertheless, the Commission deemed it necessary to include a provision dealing with nationality of claims and exhaustion of local remedies, in order to avoid giving the impression that such requirements could never apply to the responsibility of an international organization.  He said draft article 52 contained an additional paragraph to the corresponding text on State responsibility, stating that subsidiary responsibility might be invoked insofar as the invocation of the primary responsibility had not led to reparation.  Paragraph 3 of article 52 also sought to reflect the views expressed by several States, and some international organizations, towards restricting the entitlement of an international organization to invoke responsibility in case of a breach of an obligation owed to the international community as a whole.  He pointed out that in draft article 53, the possibility that a person or entity other than a State or international organization might invoke the responsibility of an organization should be left open.  He said the Commission would welcome views from Governments and international organizations on draft articles 46 to 53, as well as on issues relating to countermeasures.

Continuing on Chapter VIII, which dealt with the “expulsion of aliens”, he noted that the Commission had before it the fourth report by the Special Rapporteur on the subject.  It addressed the problem of the expulsion of individuals having dual or multiple nationalities, as well as the issue of “denationalization” and loss of nationality in relation to expulsion.  He said the Special Rapporteur was not convinced that it would be worthwhile for the Commission to elaborate draft articles on these issues, even in the interest of the progressive development of international law.  In his report, the Special Rapporteur concluded that the prohibition against the expulsion of nationals did not cover those of the expelling State who also possessed one or more other nationalities; the question also remained open whether there was any possibility of “derogation”, in exceptional circumstances, from the rule prohibiting the expulsion of nationals.  Moreover, he suggested that this prohibition might be subject to some exceptions, such as in the case of those involved in espionage, if the State for the benefit of which the activities in question had been conducted was willing to receive the person concerned.

He said that while some members were of the opinion that the Commission should elaborate draft articles on the situation of dual or multiple nationals in regards to expulsion, and also on denationalization in relation to expulsion, others shared the view of the Special Rapporteur that draft articles dealing with these questions were not needed.  It was argued that the increasingly common phenomenon of dual or multiple nationalities could not be ignored by the Commission; the prohibition against the expulsion of nationals also covered the groups he had mentioned.  Furthermore, the elements of practice relied upon by the Special Rapporteur in support of a distinction between these categories were not conclusive with respect to the expulsion issue.

He said that while some members agreed that the criterion of “effective” or “dominant” nationality could have a role to play in this context, others believed that this criterion could not justify a State treating some of its nationals as aliens for purposes of expulsion.  Also, while States had the right to punish the abuse or fraudulent use of dual or multiple nationalities, some members emphasized that “denationalization” was often used as a means of political punishment, in order to violate the rights of certain individuals and deprive them of their property before expelling them.  Several members had emphasized that a State was not allowed to circumvent the prohibition against the expulsion of nationals by denationalizing one of its nationals with a view toward his or her expulsion.  After the working group concluded its work on this matter, the Commission approved that these issues should be addressed in the commentary, and not in the text of an article.

Statements on Further Topics:  Reservations, Responsibility, Expulsion

GERHARD HAFNER ( Austria) said, on reservations to treaties, that interpretative declarations were neglected in the Vienna Convention on the Law of Treaties, but recent practice illustrated that States frequently resorted to them.  An examination of the practice might produce interesting results.  With regard to the legal circumstances of interpretative declarations and the legal consequences of silence, declarations must first be assessed in the framework of the Law of Treaties as they related to the interpretation of a treaty.  The interpretation given by a unilateral declaration of one State party could have effect only with respect to the declaring State, unless another State explicitly identified itself with that interpretation.

With regard to the guidelines, he said he had doubts about the “reclassification of an interpretative declaration”.  Whether a declaration was an interpretation or amounted to a reservation was a matter that resulted from the objective definition of reservations.  If it were necessary to mention a reclassification, it should be couched so that it left no doubt as to the objective categorization of the declaration.  The recommendation to indicate reasons for reservations was useful but did not correspond to general practice.  Since it would be difficult to define the legal effects of the reasons, there may not be a need to include the recommendation.  Even so, reservations should be formulated in a clear and well-defined manner that permitted the definition of precise scope.

On the subject of responsibility of international organizations, he said the invocation of responsibility was closely connected with the scope of the “legal personality” of the organization.  The International Court of Justice had clearly distinguished, in 1949, between the types of international legal personality.  It had distinguished between subjective and objective personality, and had limited the scope of personality to the necessary means to achieve the objectives of the Organization.  That raised the question of whether the right to invoke responsibility could be based on the “implied powers” doctrine, since it was not normally explicitly foreseen in the organization’s constituent instrument.  There were good reasons to accept that view, but the approach must not be overstretched.  It should be mentioned in the commentary that article 46, which provided for the right to invoke responsibility, affected the scope of the personality of the relevant international organization.

The reverse side of the question, he said, was related to the question of the entity against whom an international organization should be entitled to invoke responsibility.  The commentary did not reveal whether the Special Rapporteur held the view that all international organizations enjoyed objective legal personality, so that any organization could invoke responsibility against any State or other organization.  Further, while the right to invoke responsibility could be justified by implied powers in cases of injury, it was doubtful in cases where there was no injury.  Also to be considered was the capacity to invoke responsibility for breaches of obligation.  All those considerations had even greater weight in relation to countermeasures.  Also, the articles did not address cases in which an international organization invoked the responsibility of a State.

CARL HENRIK EHRENKRONA ( Sweden), speaking for the Nordic countries, said interpretative declarations, and reactions to them, should be thoroughly considered alongside reservations.  It would not be helpful to exclude considering them on the grounds that they fell outside the scope of reservations.  The use of interpretative declarations was widespread and in all too many cases they caused difficulties from similarity with reservations.  They also should be considered separately rather than simply transposing the reservations regime onto the declarations.  A Guide to Practice on reservations would not be complete without an elaboration on the use of interpretative declarations.

However, he said, caution should be exercised.  The Vienna Conventions did not elaborate on interpretative declarations.  The existing rules of the Conventions must be given full effect.  An interpretative declaration that was a “reservation in disguise” must be treated as a reservation and not as a new category.  The wording of “reclassification” created grounds for misinterpretation and opened the way to misperception.  The real intent was to “interpret” the interpretative declaration and decide whether or not it purported to exclude or modify the legal effect of the treaty’s provisions.  How it was named could give guidance but was not definitive.  The uncertainty had given rise to peculiar practice but once the conclusion was drawn that a “true” interpretative declaration had been made, States had the opportunity to react but action was not compulsory.  Should the declaration constitute a reservation, however, States were obliged to act if an objection were to be made.  If the reservation was incompatible with the object and purpose of the treaty, the reservation had no legal effect and the reservation was null and void, even without an objection.

Moving on, he said the general rule of silence could not be interpreted as consent, and the common meaning of silence must not be given too much weight since States could communicate views in other ways.  The difference was grounded mainly in what was attributed to silence.  Silence against a reservation constituted acceptance, with the exception for reservations running counter to the object and purpose of the treaty.  Silence against an interpretative declaration could never give rise to legal effects beyond those contained in existing rules of interpretation of treaties.

MIRIAM DEFENSOR-SANTIAGO ( Philippines) said her comments on the guide to practice on reservations to treaties would focus on guideline 2.1.9 referring to reasons for reservations.  It seemed that the guideline could be interpreted as saying that if a party to a treaty chose the option of making a reservation, it would have to undergo the “pain” of giving the reason, on the presumption that it would avoid the “pain”.  The commentary’s contention that the guideline did not make it difficult to formulate reservations was not very realistic.

She said reservations had been instituted into the treaty system so as to encourage States to become parties to them and thus promote international cooperation.  A wide scope of freedom was implied in the Vienna Conventions for the purpose of exercising sovereignty in determining legal relations by means of reservations.  The Vienna Convention mentioned a reservation as a unilaterally phrased reservation, reflecting the intention of the reserving party.  The guideline could be used in correctly formulating a reservation.

Turning to the topic of responsibility of international organizations, she said that if the Commission took up the subject of countermeasures, it should treat the nature and limits of countermeasures as being governed by the constituent instrument of the international organization and the decisions of the organization based on that instrument.  Draft articles on that subject would be applied as residual rules.  The mechanism would serve to respect the organization’s independence and separate personality.  States would also have the opportunity to decide on countermeasure matters in keeping with the nature of the international organization as determined by the negotiating State.

On countermeasures and peremptory norms, she said countermeasures should not affect the following:  the obligation to refrain from the threat or use of force as embodied in the Charter; obligations to protect human right; humanitarian obligations prohibiting reprisals; and other obligations under peremptory norms of general international law.  The draft articles set out those principles; the draft articles on the invocation of the organization’s responsibility set out obligations.

VIKTOR POPKOV ( Belarus) said he would address the topics of reservations to treaties and responsibilities of organizations.  The guidelines on reservations should be completed quickly to provide a valuable legal document in the area of treaties.  It was a balanced document that would serve as the basis for the progressive development and codification in the area of treaties.  The success of the Commission’s work on the matter was an indication of the constructive interaction between the Legal Committee and the Commission.

While reservations were a useful tool in bringing States into cooperation with each other through treaties, reservations should not be overused and individual States should not enter reservations just to protect their own narrow self interests.  The provisions in the draft articles must be reviewed to ensure they were in line with the Geneva Conventions.  Interpretative declarations should be considered a key element with regard to treaties.  Specific criteria on consent should be developed and consequences of interpretative declarations should be considered.  When an objection stated the reasons for why it occurred, the legal norm could not simply be changed.  An objection to a reservation was a different matter.  The Commission should continue the work in close cooperation with States.

He said the work on the responsibility of international organizations would not only strengthen the law, but the work of the organizations themselves.  The document took into account the fact that international organizations had their own statutes and procedures.  However, it had shortcomings that had already been mentioned.  The Special Rapporteur should propose suggestions in areas such as the grounds for invoking responsibility, circumstances that excluded the responsibility and the responsibility of States.  Harm suffered was another side of the responsibility.  He said the question of countermeasures had not been addressed.  If a State had a right to take countermeasures, then those must be proportional.  Countermeasures by States should be prohibited since they could be detrimental to organizations and their members.  The rights of States that had not committed a wrongful act should be recognized.  The legal norms in the field of the responsibility of international organizations were just beginning to emerge and were related primarily with the responsibility of States.  They should not be applicable to all international organizations but only to those that were nearly universal.  Regional organizations, for example, should not be included.

MR. KI-JUN YOU ( Republic of Korea) said he fully supported the consensus in the Commission for maintaining the relevant provisions of the 1969, 1978 and 1986 Vienna Conventions, with regard to reservations to treaties.  An excess of new terms, therefore, should be avoided in the Guide to Practice on the matter.  The Commission should re-evaluate its 2001 decision and consider whether to keep the guidelines on conditional interpretative declarations intact.  The Commission might also consider replacing these guidelines with a single one assimilating declarations to reservations. 

Noting differences between the guidelines and the Conventions, he said that although guideline 2.1.9 indicated that reasons for reservations should be made, the Vienna Convention of 1969 did not require such rationale.  And although guideline 2.6.5 provided for an objection by any State or international organization entitled to become a part of a treaty, the Vienna Convention referred simply to “another contracting State”.  While guideline 2.9.3 provided for a definition to “reclassification”, it might not be prudent to introduce non-conventional terms into the Guide.  Noting that reservations were necessary to securing the participation of many States in treaty regimes, it might also not be productive to adopt overly restrictive limits on treaty reservations.  A balance should be sought between the wider participation of States in multilateral treaties and the maintenance of unity in treaty regimes. 

With respect to the responsibility of international organizations, he said work on the matter was reminiscent of the Vienna Convention on the Law of Treaties, which established a single system of inter-State treaties, as well as treaties allowing for the participation of international organizations.  The final draft articles on State responsibility of 2001 should be placed in this greater context.  In addition, the responsibilities of international organizations and State responsibility were the two pillars of international responsibility for internationally wrongful acts.  Those responsibilities should be determined within a uniform system, comparable to the relationship between inter-State treaties and treaties between States and international organizations, or between international organizations.  Nevertheless, there may be certain inherent differences between States and international organizations.  For instance, for an international organization, limiting countermeasures to the performance of contractual obligations under treaty relationships involving that organization was one thing, whereas completely denying countermeasures to international organizations was another.

Briefly taking up the item on expulsion of aliens, he emphasized that the absolute prohibition of the expulsion by a State of its own nationals was a well-established international legal principle, supported by a number of international human rights instruments.  The Commission, however, should focus more on the expulsion of aliens than issues of nationality or denationalization.

DUAN JIELONG (China), regarding reservations to treaties, said that while China had no objection to a contracting State or international organizations making objections to a reservation, it had some doubts about the right of States or international organizations, before they had become contracting parties, to make objections.  He wondered whether it was necessary for the draft guidelines on the matter to provide for an act such as this, which would have no legal effect.  Giving non-contractual parties these rights could give rise to certain legal issues, such as whether the objecting State or organization was obliged to notify the treaty depositary of its objections, and whether the depositary was under the obligation to circulate the objection to contracting parties.  He was generally satisfied with the draft guidelines on interpretative declarations; however, some parts could be improved or clarified.  Further specification was needed on the question of whether there was any basis in State practice on which to presume silence to be acquiescence.

On to the topic of responsibility of international organizations, he noted that the draft articles adopted on the matter basically followed, by analogy, the wording of corresponding provisions on State responsibility, and said this approach had its merits.  However, extension by analogy could not be applied in any circumstances; those rules on State responsibility that were controversial and not supported by international practice should not be extended in this regard.  As for invoking responsibility when there was a plurality of States and international organizations responsible, he did not agree with paragraph 2 of article 51, proclaiming that an injured State or international organization should have the right to decide on its own the order in invoking the responsibility of the responsible State or international organization. 

He said invoking responsibility by States or international organizations other than the injured was pertinent to the question of countermeasures; if these third States and international organizations had the right to invoke responsibility, it would be a question of whether they also had the right to take countermeasures.  Article 52 should, therefore, be considered together with the part of the draft articles on countermeasures considered but not yet adopted by the Committee.  International organizations symbolized the centralization of the international community, and represented a certain degree of convergence of States as independent subjects in a decentralized world, whereas countermeasures were mainly meant for an unorganized and loosely-connected international community.  To introduce the concept of countermeasures into the regime governing the responsibility of international organizations went against the function performed by international organizations.

SUSANA RUIZ CERUTITI ( Argentina) agreed with the content of the proposed draft guidelines, and shared the approach of not transposing to interpretative declarations the rules applicable to reservations.  In particular, she concurred with the right of States to oppose an interpretative declaration, as set out in guidelines 2.9.2.  Furthermore, guideline 2.9.3 recognized the possibility of “reclassifying” the interpretative declarations formulated by others when they were considered to be disguised reservations.  This guideline was particularly important when examining interpretative declarations with regard to treaties that did not allow or prohibited the formulation of reservations.  Meanwhile, guideline 2.9.4 correctly reflected the right of States to react to an interpretative declaration, even before its entry into force, while guideline 2.9.8 was important in distinguishing between interpretative declarations and reservations; States did not have the obligation to react to the former, she observed.  The next guideline was also appropriate.  It said silence could not be considered acquiescence to an interpretative declaration.  On guideline 2.9.10 on conditional interpretative declarations, she said the matter was still uncertain as to whether this type of declaration should really be considered an interpretative declaration, or a reservation.

On the question of the responsibility of international organizations, she said she supported the articles dealing with the invocation of responsibility and the notice of claim and admissibility.  In that regard, it was clear that the conditions for invoking responsibility as an injured State could not be substantively different if the injured entity was an international organization.  With respect to the loss of the right to invoke the responsibility, the particular rules of the organization would have to be taken into account, regarding the organ with competence to withdraw the claim.  Regarding article 51, it was important to have in mind the basic principle that the organization had a juridical personality which was different and separate from that of its members, and that consequently the concurrent or subsidiary responsibility of a State would be subject to the characteristics of the organization.  She also supported the inclusion of article 52, she said, dealing with responsibility invoked by an entity other than the injured State or international organization.

As to the provisions dealing with countermeasures, she said this was an issue that should be dealt with cautiously.  Likewise, the working group on the matter said the corresponding draft articles should duly regulate the conditions and limits of the recourse to such measures, in particular, with regard to international organizations.  Discussions on the matter referred mainly to the question of the injured States or international organizations taking countermeasures against international organizations responsible for the breach of an international obligation.

GEORG WITSCHEL ( Germany), speaking on reservations to treaties, said “simple” interpretative declarations were not to be treated as reservations as defined in the Vienna Conventions.  The Commission had correctly noted the dearth of practice relating to the matter and, since States did not explain their silence in response to such declarations, the meaning was difficult to ascertain.  Circumstances in which silence in response to an interpretative declaration could be taken as acquiescence were rare, as in a 1951 fisheries case in which the International Court of Justice had issued a judgment regarding delimitation of Norwegian coastal waters, and the silence of the United Kingdom had been taken to be acquiescence.

Further, he said silence was “not a part of the legal effects of a declaration”, but was rather a reaction to such a declaration and a prerequisite for such legal effects.  The author of such a declaration was bound by consequences only when another party had come to rely on the declaration, perhaps by expressing approval.  The interpretation expressed in the declaration was binding between a State or organization that had approved the declaration and the declaration’s author.  Expressing opposition could either limit the intended legal consequences or exclude them. 

Taking the floor, on the subject of the responsibility of international organizations, he said the articles took advantage of the Commission’s work on responsibility of States.  Several issues were of particular interest, including “the invocation of responsibility by a State or an international organization other than an injured State or international organization” and relating a breach of obligations.  While such a breach was conceivable only in limited circumstances, the provision filled out the overall coherence of the law on responsibility. 

On countermeasures, he said that, while resort to countermeasures in response to internationally wrongful acts by international organizations outside the World Trade Organization did not seem to constitute frequent or even established practice, such rules were needed for international organizations to be able to fulfil mandates.  However, the use of countermeasures should be restricted “to avoid sowing yet greater complexity and opacity into international relationships”. 

AINO LEPIK VON WIREN ( Estonia), on the topic of reservations to treaties, said the greater clarity of the guidelines on matters such as late reservations and permissible ones would be welcome.  Still, there were some disputable aspects.  Regarding late reservations, for example, the Vienna Conventions provided that reservations could be made only at the time of becoming a party to a treaty.  But the Law Commission’s report preserved the possibility of objecting to the late formulation of a reservation with the consequence that the reservation would not have any legal effect.  Clarity would also be brought to the subject of interpretative declarations, she added.

It was also encouraging that the topic of reclassification was being considered.  However, the matter of whether the so-called conditional interpretative declaration could be considered a sub-category of interpretative declarations was questionable.  Finally, the rules on the legal effect of objections as set forth in the Vienna Conventions needed to be elaborated in the Guide to Practice, so as to make it easier for States to reach the desired effects with the objections.

MILAN DUFEK ( Czech Republic) pointed out that, in respect to draft article 52 (on the invocation of responsibility by a State or an international organization other than an injured State or international organization), the practice did not seem indicative, and the views of legal doctrine seemed divided, and what was missing was the promotion of codification of international law.  He noted that the proposal did not seem to fully reflect the difference between States and international organizations, as those organizations possessed only a functional and differentiated legal personality. 

He said the Czech Republic had chosen to reserve its final position until later, when the work on the responsibility of international organizations was more defined, based on the report of the Special Rapporteur that would clarify the responsibility of a State in connection with an act of an international organization.

In addressing countermeasures, he noted that the first set of draft articles would require a cautious approach.  Although he did not question the possibility that an international organization could, under certain conditions, resort to countermeasures, he regarded them as “measures of decentralized law enforcement (so-called private justice)”.  Because of this, he stated that any countermeasures by international organizations should be limited to withholding the performance of contractual obligations under a treaty relationship involving the organization. 

On the denationalization and expulsion of persons with dual or multiple nationalities, he observed that “multiple nationality” was more and more common in present times, and required closer study.  The Special Rapporteur had concluded that the principle of non-expulsion of nationals did not apply to persons with dual or multiple nationalities when the expulsion would not result in statelessness.  The delegate said he did not share this view and believed that persons with dual or multiple nationalities should be afforded protection against forced removal from the State of the nationality; in his country, a person with both Czech and foreign nationality was regarded as a Czech national, and thus expulsion was absolutely prohibited.  This principle, although not in international treaties, was embedded in a number of regional and universal human rights instruments.  He feared that the “denationalization” of persons as a prerequisite to expulsion lent itself to the abuse of rights.  Rather than protect the State and its interests, the measure often served “illegitimate ends, such as expropriation and discrimination of certain groups of populations”.  Because denationalization was regulated by many international human rights conventions, it was not necessary to reiterate it in the draft articles.

VALERIO ASTRALDI ( Italy) said time spent on the matter of interpretative declarations raised some interesting questions, but it should be truncated since these declarations could not be regarded as reservations.  In that regard, the Law Commission could have omitted, in its study on the matter, how far the rules on interpretative declarations departed from those relating to reservations.  However, an extensive set of draft guidelines on objections to reservations was clearly justified.  Although most of these guidelines were acceptable, guideline 2.6.13 was too rigid when it set its deadline of 12 months for an objection.  This deadline seemed to imply that a reservation was presumed to be accepted when no objection was made to it within that 12-month period.  He pointed out that objections had often been made after the expiry of that time frame.

He said the articles that the Commission had adopted this year on the implementation of international responsibility were generally acceptable.  This also applied to the admissibility of claims.  While countermeasures were a controversial subject, there would be little justification for adopting a different approach for international organizations.  While in the current draft the articles on countermeasures should be written along the lines of those adopted on State responsibility, a distinction between States and international organizations seemed justified with regard to measures taken in response to the breach of an obligation towards the international community as a whole.

Turning to the topic of the expulsion of aliens, he said only a few pages in the Commission’s report were devoted to the subject.  Thus, the Special Rapporteur concluded that it was not necessary to introduce a draft article on the subject, or on the expulsion of individuals following their denationalization.  He pointed out that the current study on expulsion was not the appropriate place for embarking on a discussion of matters pertaining to the law of nationality.  He also shared the Commission’s view that a State could not lawfully expel one of its nationals, even if he or she also possessed a foreign nationality.  However, a draft article should be formulated stating that the prohibition of the expulsion of nationals could not be circumvented by denationalizing an individual for the purpose of expelling him or her.

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