Sixty-third General Assembly

Sixth Committee

21^st & 22^nd Meetings (AM & PM)

PROCEDURAL CONSTRAINTS ON WORK OF INTERNATIONAL COURT OF JUSTICE

DESCRIBED TO ASSEMBLY’S LEGAL COMMITTEE BY PRESIDENT OF COURT

Need for Agreement between Parties on Submitting Disputes Means

More Time Reviewing Objections, Less for Resolving Substantive Issues

Only when both parties to a dispute consented to the jurisdiction of the International Court of Justice did the United Nations make a referral to it, making the Organization the only international institution not to oblige members to accept the Court’s compulsory jurisdiction, the President of the Court, Judge Rosalyn Higgins, told the Sixth Committee (Legal) today, her annual visit with the Committee occurred during its continued review of the report of the International Law Commission.

Judge Higgins said that requiring mutual consent meant the Court was too often examining objections to its own jurisdiction, rather than addressing the serious problems under consideration.  Adding to the time the Court spent on objections to jurisdiction served to diminish the time it had for resolving major substantive disputes.

The Committee today completed its consideration of the Law Commission’s report on reservations to treaties, the responsibility of international organizations and the expulsion of aliens.  It began discussion on other topics from the report:  the protection of persons in the event of disasters; immunity of State officials from foreign criminal jurisdiction; and the obligation to extradite or prosecute.

In an exchange with the President of the International Court, the representative of Portugal questioned whether the proliferation of dispute settlement forums made the Court a “supreme” court with proliferating subsidiaries.  The Sudan’s representative asked if jurisdictions might clash.  Judge Higgins said the Court was the world’s senior court and the only court with a potentially universal jurisdiction.  When it handed down decisions on situations involving States, the decision impacted on international law.  When a case of overlapping jurisdictions came before the Court, the circumstances and applicability of jurisdictions to the situation were taken into account.

The representatives of Germany and the United Kingdom also took part in the exchange with Judge Higgins. 

Introducing the new items in the report of the International Law Commission, its Chairman, Edmundo Vargas Carreno, said the protection of persons in disasters required the clarification of core legal principles and concepts involved; that would create a “legal space” for carrying out relief work on a secure footing.  Because there was a paucity of State practice on the topic, extensive consultations would be needed.

Also calling for further normative work, Finland’s representative (on behalf of the Nordic countries) said that increasing numbers of people were affected by disasters every year, largely due to the inability of States to provide timely and effective protection.  The rights-based approach to protection served as a departure point for codification efforts based on international human rights and humanitarian law.

However, draft articles on the matter should not cover situations that already had a legal status, said Chile’s representative.  Those included cases pertaining to rules of international humanitarian law or those established in treaty instruments on environmental law.  In the face of large scale disasters, the international community as a whole should assume certain responsibilities, with rights of disaster victims assuming the character of basic human rights.

Germany’s representative called for the security situation of humanitarian aid workers to be rectified.  He said that, while those workers always faced risks, direct attacks had increased recently.

On the obligation to extradite or prosecute, he said he recognized the principle of universal jurisdiction and the right of every State to prosecute genocide, war crimes, crimes against humanity, slavery and piracy.  However, he doubted there was a common opinion among States, or sufficient evidence of State practice, to assume that same obligation extended beyond those cases. 

On the matter of expelling aliens, as debate on that subject closed, Japan’s delegate said State practice should be taken into account.  Treaties and declarations should be reviewed so that the outcome of the work struck a delicate balance between the right of States to decide on admission of aliens and fundamental human rights of people.

Agreeing, the representative of the United States stressed the need to consider the legal and political situations of States and their sovereignty, while excluding issues of non-admission, rendition and other transfers.  Extraditions and expulsion of aliens in situations of armed conflict should also be excluded from discussion on scope.  The inclusion of those factors might present an obstacle to obtaining broad support.

Also speaking on various topics today were the representatives of Greece, United Kingdom, Bulgaria, Poland, Russian Federation, Uruguay, Belgium, Romania, Spain, New Zealand, Cyprus and the Netherlands.

Giorio Gaja, Special Rapporteur on the responsibility of international organizations, also addressed the Committee today, and there were statements from the observers of the European Community and of the International Federation of the Red Cross and Red Crescent Societies.

The Sixth Committee will meet again at 10 a.m. Monday, 3 November, to resume review of the International Law Commission’s report, with a continued focus on the protection of persons in the event of disasters, the immunity of State officials from foreign criminal jurisdiction and the obligation to extradite or prosecute.

Background

The Sixth Committee (Legal) met today to continue its consideration of the report of the International Law Commission, with a focus on reservations to treaties, responsibility of international organizations and the expulsion of aliens.  Three new topics were also expected to be taken up:  protection of persons in disasters; immunity of State officials; and obligation to extradite or prosecute.  The annual visit to the Committee of the President of the International Criminal Court was also expected.  (For background on the report, see Press Release GA/L/3351 of 27 October.)

Statements

PHANI DASCALOPOULOU-LIVADA ( Greece) said she was not convinced that the issue of countermeasures was as relevant to international organizations as it was to States, although she retained certain doubts about the latter as well.  Measures taken by an international organization against its members should be considered as sanctions, which related to the maintenance of international peace and security, rather than countermeasures.  She was also concerned, in the Law Commission’s proposed draft article 52 on the matter, about bestowing to an international organization the right to resort to countermeasures against its own members, and vice versa.  It was doubtful whether there was a right of a member State to resort to countermeasures against the international organization of which it was a member.  The institutional regime of an international organization was by no means analogous to treaty relations between States.  Usually, that institutional regime would provide for mechanisms on dispute settlement, or for other arrangements, which would not leave room for such “drastic action” as countermeasures.

She said it was difficult to reconcile the idea of subsidiary responsibility with the possibility for an injured State or international organization to entertain a claim against the source either “primarily or subsidiarily responsible”.  The treatment of the claim would not allow for differentiation between those being jointly or severally liable for a claim.  The responsibility of member States of an organization should not be invoked if primary responsibility of the organization had not led to reparation.  The primarily responsible organization was also primarily responsible for providing reparation; as a result, subsidiary responsibility might be invoked only insofar as primary responsibility had not led to reparation.

MARK SIMONOFF ( United States) noted that the Commission’s report pointed out a “scarcity and relative uncertainty of practice” concerning reservations to treaties; there was not yet enough State practice from which to derive suitable guidelines.  Furthermore, the “general regime” put forth in the report was not nuanced enough to address what little practice there was.  The proposed categories of reactions to treaties were too restrictive.  The terms “approval” and “opposition” implied that a State’s reaction to an interpretative declaration would, inaccurately, lead to legal consequences for that declaration.  Moreover, given the extraordinarily rare practice of opposing interpretative declaration, it was entirely unclear on what basis a State’s silence would be a consideration.  He said these proposed guidelines went beyond the progressive development of international law.  Instead, they promoted a new legal regime.  The guidelines, therefore, were likely to produce a significant burden on the treaty offices of States that would feel compelled to review all interpretative declarations and respond to them, so as not to suggest they were agreeing with a particular interpretation through a lack of response.

On the issue of the responsibility of international organizations, he expressed reservations about the notion that the Commission’s articles on the matter established a model template.  States and international organizations were fundamentally different; just because they both had international legal personalities did not mean they should be subject to the same rules under international law.  In particular, unlike States, which shared a fundamental set of qualities, these organizations had diverse structures, functions and interests as they related to States and each other.  Moreover, sovereignty, citizenship and territorial integrity, which underpinned these articles for States, did not exist in the case of international organizations.  He said the treatment of reparations had different implications when applied to the two, noting that obligating international organizations to make reparations for an injury caused by an internationally wrongful act might steer their resources away from funding their core international functions and, instead, funnel them towards “protecting against unquantifiable litigation risks”; this obligation also created reasons for States to reconsider the extent to which they wanted to continue to participate in such organizations.  These same concerns applied to the admissibility of claims, the invocation of responsibility of international organizations and countermeasures. 

Commenting on the item of the expulsion of aliens, he said this was a complex topic that implicated the formulation and enforcement of a State’s immigration laws, as well as national security.  Noting that the draft articles on the matter should reflect “well-settled principles of international law and State practice”, he said it was paramount that the Commission consider the legal and political issues of each State and its sovereignty.  Non-admission, rendition and other transfers, as well as extraditions and expulsion of aliens in situations of armed conflict, were external to the issue; their inclusion might lead to confusion and could be seen as articulating new or alternative rules not well settled in international law and practice.  This, in turn, might present an obstacle to obtaining broad support for the project.  The distinction between aliens who were lawfully present and those who were not should be clearly observed, with different removal procedures articulated for each group. 

He said he did not agree that States had an obligation not to “denationalize” a citizen who did not have any other nationality; the issues of denationalization and the protection of persons with dual or multiple nationalities deserved further review.  The term “refugee” in the articles needed to be clarified, while the language dealing with the non-expulsion of stateless persons needed to be reconsidered.  The inclusion of this language derived from the Convention relating to the Status of Stateless Persons, which was not widely ratified by States, including the United States.

JESSICA GLADSTONE ( United Kingdom), speaking of reservations to treaties, said it was appropriate to deal with interpretative declarations alongside reservations to treaties, since a link existed between the two.  In many cases interpretative declarations were disguised reservations, where a treaty instrument might expressly forbid the making of reservations.  However, given the differences between the two, chapter VI of the Law Commission Report should be expanded to make specific reference to interpretative declarations, and separate terminology should be used where possible, since “reservations” were juridically different from “interpretative declarations”.

She said the United Kingdom welcomed guidelines that supported interpretative declarations being made by non-parties, at any time and without being subject to a definitive time frame.  They should be made in writing, with the understanding that an interpretative declaration may be complex and not capable of simple definition.  Furthermore, she added, responding to an interpretative declaration with silence did not necessarily constitute acquiescence.

On the responsibility of international organizations, she said the United Kingdom had expressed some concern in the past about how closely the Commission’s work had been following the Commission’s Articles on States Responsibility.  She recognized that there were some issues where it was sensible to have regard to the equivalent provisions in the two, but questioned whether it was correct to state, as did draft articles 46 and 52, that an international organization was entitled to invoke the responsibility of another international organization if the obligation breached was “owed to the international community as a whole”.  It was difficult to consider international organizations as having the same right as States to present a claim in the event that an international organization commits a breach of an obligation which is owed to the international community as a whole.  It was important to include a provision dealing with nationality of claims and exhaustion of local remedies.

Turning to the topic of expulsion of aliens, she said this difficult and complex issue was a problematic topic for the Commission to address. Her delegation continued to doubt that it was suitable for codification or consolidation at the present time.  She therefore supported the cautious approach of the Special Rapporteur, who remained unconvinced of the advisability of preparing draft articles on issues relating to nationality.  She said her delegation would “continue to have doubts” about the appropriateness or need for a draft article on non-expulsion of nationals.

EMILENA POPOVA ( Bulgaria) said the topics “reservations to treaties” and “treaties over time” belonged in the same category, which proved that international treaties were “living instruments”.  The Vienna Convention on the Law of Treaties, instead of imposing strict rules, provided solutions that served both the integrity and flexibility of the Convention.  The draft rules on the matter preserved the difficult balance between the universality of treaty membership and the integrity of treaty content.  However, the future guidelines on reservations faced the crucial challenge of developing practical solutions without overwriting the provisions of the Law of Treaties.  The guide was expected to fill the gaps of this Law, while keeping it intact. 

Relaying her specific concerns on the topic, she said there were numerous reservations made which could not pass the admissibility test of article 19 of the Law of Treaties; however, only a few States had made objections to them.  Although the Special Rapporteur had proposed a tool to solve this issue in draft guideline 2.1.8, the solution interfered with the core function of the depositary as a neutral administrator.  An alternative approach might be to introduce a rule in the guide advising the depositaries, while circulating these objections to call on the attention of contracting States and States entitled to become parties to treaties to the reservation in question and the objections made to it.  A careful wording of the rule would not interfere with the administrative functions of the depositary and would guarantee that the issue did not go unnoticed.

She said the reason a State chose to make a reservation might often be because the State wanted to be part of a treaty regime, yet also wanted to keep the level of its obligation on certain issues within the treaty regime at the level of customary international law.  When, by its reservation, the State purported to go below the obligations it had under customary international law, then it undermined the core elements of the treaty regime. 

REMIGIUSZ A. HENCZEL ( Poland) said the stage of development of the three topics under discussion differed significantly, with the advanced being the “reservations to treaties”.  Since 1995, he recalled, the Law Commission had elaborated and adopted an impressive amount of guidelines –- more than 100 ‑‑ which were intended to be an exhaustive guide of practice, in respect of reservations.  However, the growing number of those guidelines, and their more detailed character, might cause some States to feel “slightly lost”.  Some of them simply repeated the provisions of the Vienna Conventions.  His delegation suggested the possible elimination of such repetitions, to make the guidelines easier and more effective. 

The Commission should reconsider the scope of material covered by the guidelines, particularly that which was with other instruments not directly connected with the reservations, like interpretative declarations.  To date, he went on, guidelines concerning such declarations were included with more general rules or in special sub-chapters.  A proposal in the thirteenth report, on a separate set of guidelines dealing with reaction to interpretative declarations, would extend the scope of the exercise far beyond the original limits of considerations.  States often used interpretative declarations simply to avoid formal limitations connected with reservations –- so if these limitations were going to be extended, that might cause some difficulties with the acceptance and practical application of such guidelines by States concerned.

He turned to the other topics under discussion, welcoming the positive momentum generated by the work of the Commission on the topic of the responsibility of international organizations.  At the same time, he said, he must warn against the automatic repetition of some provisions or legal constructions contained in the draft articles on the responsibility of States.  On the expulsion of aliens, he said his delegation supported the conclusions reached by the working group, in particular with regard to States not using “denationalization” as a means of circumventing their obligations under the principle of the non-expulsion of nationals.

SOFIA SARENKOVA ( Russian Federation) said the Law Commission’s work on reservations to treaties was most important.  While the intent behind the formulation of a reservation was significant, the approach to the concept should focus more on the legal qualities of reservations to treaties.  Real objections should be distinguished from others.  The topic of “interim applications of treaties” had not been covered by the proposed articles.

Reviewing the articles in detail, she touched on matters such as confirmation of objections, additions to the draft notification on signing of a treaty, legal impacts of objections at preliminary implementation, and the effect of objections on the entry into force of treaties, as well as communications of acceptance of treaty obligations.  She said reservations and objections to them could be politically motivated, and the article on conditional objections was not entirely consistent with other articles dealing with objections.  She said the formulation of an objection was more of a technical operation than a content-dependent one.  A different formulation should be found for the articles on late formulations of objections, with more clarity on the legal impact of a full objection.  The draft guidelines overall showed the broader formulation used and reflected the adherence to the norms of the Vienna conventions.  Since the articles were not legally binding, the terminology should be closer to that used in indicative documents.

Turning to the obligation of international organizations and the set of draft articles that had been adopted, she said a number of the articles could be taken from the articles on the responsibility of States.  Those included article 46 on invocation of responsibility, article 47 on notice of claim, article 50 on plurality of injured States or organizations, and article 51 on plurality of responsible States or international organizations. 

With respect to the admissibility of claims and the loss of the right to invoke responsibility, she said the basis for the provision on the exhaustion of local remedies was not entirely clear.  Voluntary acceptance of jurisdiction was required, and with an international organization it was unlikely, unless the organization had administrative jurisdiction in the area of its operation, and that was a rare situation.  At the very least, it could be assumed that the claimant had already accepted jurisdiction.  The important practical point of who had right to bring a claim should be linked to the Vienna convention.  Guidelines on the obligation of international organizations should be formulated with a view to comprehensively covering situations related to areas such as disarmament, peacekeeping and human rights situations.

Addressing the subject of countermeasures, she said discussion of the topic had been useful, independently of the consideration of whether to include provisions on countermeasures in the draft articles.  She said countermeasures should be considered in the context of both member states and non-member states of the international organization.  The rules for countermeasures arose from common law and were applied to the competence of the relevant organization.  The relevance of countermeasures as applied to an organization that had not suffered injuries was questionable, although debate on the matter had been heated. 

She said the topic of the expulsion of aliens was particularly important.  The Law Commission should turn the work into concrete results as soon as possible, even if that had to be accomplished by submitting the results in parts rather than waiting until all the work was complete.  With regard to dual or multiple nationalities and denationalization, the Commission was correct in the position that States must not use denationalization as a way of circumventing obligations against expulsions of citizens.  Also, the phenomenon of citizenship must not be split into categories, but should be viewed in context of existing corresponding legal norms. 

GUSTAVO ALVAREZ (Uruguay), on the expulsion of aliens, said the subtopics of “denationalization” and the “non-expulsion” of those individuals with dual and multiple nationalities belonged to the larger topic of nationalities.  This general topic could be included in the draft articles presented by the Special Rapporteur last session.  However, the debate on the issue during the Commission’s sixtieth session needed to be more thoroughly studied.  He noted that the conclusion of the principle of non–expulsion did not apply to dual or multiple nationalities, except if that led to statelessness.

Disputes between international organizations and their members had to be dealt with by the statutory procedures of the organizations.  Those organizations, outside their statutes, could not resort to countermeasures.  This would include cases where sanctions were adopted, in particular those imposed by the Security Council, outside the scope of their statutes.

WILLIAM ROELANTS DE STAPPERS (Belgium), commenting on the issue of reservations to treaties, said an example of an interpretative declaration that could not be qualified as a reservation was one formulated by Belgium when the Rome Statute of the International Criminal Court was ratified.  It involved the exoneration from criminal responsibility.  There had, to date, been no reaction to this declaration. He said practice was lacking concerning interpretative declarations.  The differences of opinion among Commission members on the matter was a clear indication of the major difficulties in trying to decide advanced questions that largely depended on the details of particular cases.  He said a unilateral interpretative declaration formulated by a State could not lead to an obligation for other State parties to the treaty that was not contained in the treaty itself.  Moreover, silence in the face of an interpretative declaration could not mean the tacit acceptance of that declaration.  The interpretation of treaties would be realized by the parties or by the judge, in application of the rules set out in articles 31 and 32 of the Vienna Convention on the Law of Treaties.  In particular, one could not abstractly decide, a priori, the question of knowing if a unilateral interpretative declaration could be retained.  However, a unilateral declaration could initiate an agreement between parties to the treaty, or an agreement on the established practice between parties on the sense of the treaty.  Nevertheless, a declaration alone was powerless to establish meaning of a treaty.

On the responsibility of international organizations (and associating himself with the statement made on behalf of the European Community), he said Belgium was satisfied with articles 46 through 53 in the Commission’s report.  He commented that countermeasures were not limited to inter-State relations.  For instance, articles 54 to 60 dealt with countermeasures taken by a State or an international organization against another international organization.  However, this begged the question of whether countermeasures taken by an international organization against a third State were legally covered, although this was a major part of contemporary practice in the matter of countermeasures adopted outside interactive relations.  The Commission should, therefore, think of ways of expanding application of draft articles to encompass the relationship with third States.  When countermeasures were taken by an international organization against its members, or vice versa, the rules of the organization had to be taken into account.  Moreover, an additional provision could stipulate that an international organization could not take measures against one of its members if reasonable means existed for the member to fulfil its obligation to the organization.

COSMIN DINESCU ( Romania) acknowledged difficulty with the subject of reservations to treaties, and said he shared the conclusions of the Special Rapporteur, specifically regarding interpretative declarations and “reclassification” of interpretative declarations.  “There is good reason to uphold that the two notions do not produce similar effects,” he said.

Turning to the subject of “silence” as an act of acquiescence in response to an interpretative declaration, he emphasized that the effect of silence in respect of an interpretative declaration was not the same as in the case of reservations.

He said he supported the approach taken in the latest draft articles on the responsibility of international organizations, commenting that even more important in these articles was the issue of countermeasures.  The issue, he felt, while in close connection to other types of measures, needed to be treated independently.  He said additional clarification was also needed on the object and limits of countermeasures, and their relation to the internal procedure of the international organization, as well as the issue in draft article 53 of obligations “owed”.  Such obligations could not be affected by the countermeasures, he said, so a more general approach on these elements was advisable.

On the issue of the expulsion of aliens, he said that although the principle of non-expulsion of nationals was in several constitutional norms and bilateral treaties, it could not be considered an absolute rule considering the recent practice of States.  The issue of the expulsion of persons with dual or multiple nationalities, as well as the deprivation of nationality, needed further investigation.  However, he concluded, “the right of every person to a nationality and the right not to be arbitrarily deprived of one’s nationality should be reaffirmed.”

Address by President of International Court of Justice

ROSALYN HIGGINS, President of the International Court of Justice, spoke of the jurisdiction of the Court, pointing out that the United Nations was the only international institution not to oblige its members to accept the compulsory jurisdiction of the Court.  Instead, referring cases to the Court was optional and based on the consent of both parties.  Requiring mutual consent had meant that the Court was too often examining objections to its own jurisdiction, rather than addressing the serious problems at hand. 

She said the Court reformed itself in recent years to make procedures for raising preliminary objections more clear and efficient.  In the 2001 version of the new rules, the Court could uphold an objection, reject it, or declare that it did not possess an exclusively preliminary character.  Once this was established, the Court had to deal with the objection immediately.  Around that same time, the Court introduced a three-month time limit from the delivery of the “memorial” for raising preliminary objections. 

Because of the absence of a compulsory dispute settlement system, and the overriding need for recourse to the Court to be based on consent, a sizable part of the Court’s case law was made under its own jurisdiction.  In its 62 years, there had been referred to the Court 113 contentious cases, some of which had later been withdrawn.  Consent given under the optional clause was almost invariably accompanied by reservations that needed to be interpreted by the Court.  Noting that 97 judgments had been issued since 1946, nearly half of them required separate hearings on jurisdictional issues, with a high percentage having been optional clause cases.  This was hardly a model for efficiency in the substantive resolution of disputes.  Where a compromissory clause of a treaty was invoked, there remained room for denying that the case could be consented to, often for one of two reasons:  either because the subject matter of the dispute did not relate to the treaty, or because certain preconditions were claimed to be required under the treaty. 

Discussing the optional clause in more detail, she said 66 States had made declarations under this provision.  In most instances, the declarations had been accompanied by reservations, which often had to be interpreted.  An interesting question that the Court had faced several times was whether other settlement mechanisms operated to displace the optional clause.  This was the case in Cameroon v. Nigeria when Nigeria argued that the parties had agreed to settle their boundary disputes exclusively through bilateral negotiations.  The Court concluded that just because the parties had undertaken negotiations in boundary matters in the past, the existence of regional negotiation mechanisms could not prevent the court from performing its functions.  Another question was, when confronted with multiple bases for jurisdiction, which should assume priority?  The question came up in Nicaragua v. Colombia when Nicaragua invoked two separate legal instruments as grounds for the Court’s jurisdiction.  Thus, the Court decided that it could not deal with the two bases simultaneously and decided to proceed from a more general stance.

She said treaty-based jurisdiction had become more and more important in recent years, and some 300 bilateral or multilateral treaties provided for the Court to have jurisdiction in resolving disputes arising out of compromissory clauses.  Rarely did a treaty-based case emerge where one of the parties to the dispute was not a State, but an international organization.  Over the past decade, all but six of the 40 cases submitted to the Court had been based in whole or in part on jurisdiction under compromissory clauses.  She noted that applicants often sought out a treaty that furnished grounds for their litigation to be launched, especially in requests for the indication of provisional measures; for provisional measures, jurisdiction needed to be found only on a prima facie basis. 

Turning to special agreement cases and forum prorogatum, she said they had some features in common with treaty-based jurisdiction cases in that the Court was locked into a specific arrangement between the parties.  A case coming by special agreement did not, however, guarantee that there would be no jurisdictional issues for the Court to address.  Forum prorogatum, which was long thought to be a “dead letter”, had recently been invoked twice before the Court, in both cases between an African State and France.  In cases based on optional or treaty clauses, the Court had emphasized the need to determine whether consideration of facts or events which occurred after the filing of an application would transform the nature of the dispute.  This was not so in a forum prorogatum case, where so much was based upon consent expressed at the very moment by the respondent; rather, the question was whether the subsequent events were visible to the party at the time it consented to the jurisdiction.

Whether every substantive matter raised in pleadings in a jurisdictional hearing had to be declared “not exclusively preliminary” in character was another question that deserved attention, she said.  For instance, in the Nuclear Tests case, the Court emphasized that while examining questions of jurisdiction and admissibility, it was entitled to go into other questions that might not be strictly classified as matters of jurisdiction or admissibility.

In conclusion, she said experience had shown that cases coming to the Court on the basis of an optional clause were likely to invoke extended controversy, while those coming on the basis of a compromissory clause would be less controversial.  Jurisdictional matters played a much smaller role in cases coming by special agreement.  Although an increased number of States making declarations under the optional clause would be welcome, as far as the contribution of the Court was concerned, the answer could not lie in States or groups of States depositing optional clause declarations, which included reservations and conditions that would render the scope of the Court’s jurisdiction almost nil.  Such a situation would simply add to the lengthy time the Court spent on objections to jurisdiction and would diminish the time it had for resolving major substantive disputes.  It was therefore, she concluded, time for some thinking “outside the box” on the question of the Court’s jurisdiction.

Exchange Event

In an exchange between Committee members and the President of the International Court of Justice, the representative of the United Kingdom noted that compulsory jurisdiction was linked to strong juridical systems and boundaries, with the compulsory jurisdiction of international courts most accepted where legal systems were strong.  Germany’s representative said his country had just accepted the Court’s compulsory jurisdiction, 25 years after a ruling had been handed down.  States often had political concerns with far-reaching jurisdictions of courts.

The representative of Portugal noted the proliferation of dispute settlement forums to give different legal solutions in relation to a case.  Could the Court be regarded as a “supreme” court with proliferating subsidiaries?  Sudan’s representative said his country had nine bordering neighbours representing various court jurisdictions.  Could jurisdictions clash?

Responding, the President of the Court said she had no argument with compulsory jurisdiction sitting comfortably with strong jurisdiction and predictability of the juridical system, such as in recognizable legislature.  The Council of Europe was closest to the United Nations law-making machinery.  Germany’s recent optional clause declaration had been noted with pleasure.

On the matter of overlapping jurisdictions and the proliferation of judicial mechanisms, she said the International Court of Justice was a supreme court in a way, but it was more the world’s senior court and the only court with a potentially universal jurisdiction.  When the Court handed down decisions on situations involving two States, the decision impacted on international law.  Likewise, the Court watched, with interest, the decisions coming from other judicial legal bodies, such as regional courts and tribunals.  A review of Security Council resolutions, for example, would fall within the jurisdiction of the Court.

With regard to a case subject to overlap of jurisdictions, she said that, if such a case came before the Court, the Court would take into account not just the various jurisdictions involved, but also the circumstances and applicability of those jurisdictions to the situation.

When the Committee met again this afternoon, CONCEPCIÓN ESCOBAR HERNÁNDEZ ( Spain) said that although there were problems on the table, there were windows of opportunity that could strengthen the work and efficiency of the Law Commission.  The topics it had selected for the five-year plan, namely “treaties over time” and the “most favoured nation clause”, were appropriate.  However, work on these matters should be without prejudice to work already under way, some of which was at an advanced stage.

She spoke of the reservations to treaties, noting that the Commission had made progress in analyzing this longstanding topic, provisionally approving a high number of draft guidelines.  The Commission could conceivably finalize its work on the guide on the matter at its next session.   However, in the absence of any definition in the Vienna Conventions on interpretative treaties, she said the diverse opinions of members on issues such as scope and the relationship to the institution of acquiescence were understandable.  She had reservations, she went on, about the distinction made in the draft guidelines between interpretative declarations and conditional interpretative declarations.  Including the category of conditional declarations seemed “artificial”, she said.  The risk of this conceptual provision was not negligible and had significant methodological consequences.  Identical rules could not be applied to the two categories of reservations, given that they pursued different purposes. 

She said silence in response to a declaration would only undermine the interpretative value of the declaration, which was unilateral and difficult to impose on State parties.  Identifying and listing, precisely, the circumstances in which effects derived from silence would take place was an arduous job and not practically useful.   Defining these circumstances should therefore be done on a case-by-case basis.

On the responsibility of international organizations, she said there was no objective reason to exclude, a priori, countermeasures applicable to international organizations.  The Commission’s report should bear in mind the specific nature of each organization as far as the rules governing mandates and establishing relationships between those organizations and Member States were concerned.  Describing sanctions adopted by the Security Council as countermeasures was not accurate; those sanctions should be excluded from the draft articles on countermeasures.    

SCOTT SHEERAN (New Zealand), supporting the approach to objections to reservations as set out in draft guideline 2.6.5, said it was important for States and international organizations to have the ability to object to reservations when they were not yet party to a treaty, but were entitled to become a party to in the future.  However, a party should not be required to “re-lodge” an objection after the reservation had been confirmed.  He said consent to an interpretative declaration should not be inferred from silence.  However, if there were circumstances where silence would constitute consent, the relevant factors should be clearly identified.  The lack of clarity in draft guideline 2.9.9 on the matter might create an administrative burden on States to consider each interpretative declaration and provide a response in order to protect its position.  Also, uncertainty over the effect of silence on an interpretative declaration could lead States to increasingly lodge and object to interpretative declarations. 

On the responsibility of international organizations, he said the relationship between an international organization and its members ought to be regulated by the organization’s constituent instrument.  The only legitimate basis for countermeasures against an international organization was to induce it to comply with its obligations.  The measures should be taken in a way as to allow for the resumption of those obligations.  He also had reservations about whether an international organization should be able to take countermeasures against a State which was not a member of the organization.  Moreover, there could be no right of a State subject to mandatory measures imposed by the Security Council to take countermeasures in relation to those mandatory measures. 

Noting the sovereign right of States to expel aliens from their territory and to exercise discretion when regulating nationality, he said such sovereign powers were not unlimited.  The ability of States to expel aliens was subject to general limitations as well as to specific substantive and procedural requirements that protected individuals against arbitrary actions by States.  These limitations and requirements safeguarded the rights of individuals, such as those with respect to refugees and other protected persons, or stateless persons.  In light of the difficulty towards balancing these rights and obligations, it was not appropriate to move forward with draft articles on the matter at this time.  Identifying the key general principles that related specifically to the expulsion of aliens was a necessary condition for drafting definitions. 

CLAUDIO TRONCOSO REPETTO ( Chile) stressed the importance of the seminar held annually for advanced students specializing in international law and for young professors or Government officials.  Also important, he said, was cooperation between the International Law Commission and the regional bodies involved in the codification and progressive development of international law, such as the Inter-American Juridical Committee, the European Committee on Legal Cooperation, and the Asian-African Legal Consultative Organization.

On the topic of shared natural resources, he said the draft articles were balanced, and they established the sovereignty of the State over the portion of a transboundary aquifer or aquifer system located within its territory, in accordance with international law.  The draft articles also reflected trends in international environmental law, since they concerned the obligation to adopt measures of response to significant harm in another State.

Turning to the draft articles on the effects of armed conflicts on treaties, he said they applied to situations in which at least one of the parties to a treaty was a party to an armed conflict, whether internal or international.  They were aimed at affirming the basic principles of safeguarding the stability and continuity of treaty relations, for which the fundamental rule was laid down that the outbreak of armed conflict did not necessarily terminate or suspend the operation of treaties.

Referring to the protection of persons in the event of disaster, he said the first task facing the Commission was to define the concept of protection for the purposes of the topic and, once it was clarified, to determine the rights and obligations of the different actors in a disaster situation.  Draft articles should not cover situations that already had a legal status, such as cases for the rules of international humanitarian law or those established in treaty instruments on environmental law.  In the face of large scale disasters, the international community as a whole should assume certain responsibilities, and the rights of disaster victims should have the character of basic human rights.

NOBUYUKI MURAI ( Japan) said the debate concerning the peculiar features of international organizations had been lively.  Views had varied widely with regard to the wording of local remedies, some even questioning whether a concept such as local remedies really existed for international organizations.  The scope and the possibility of individuals invoking the responsibility should be studied further.  The concept of countermeasures had also been questioned, both with regard to responsibilities of States and of international organizations.  Including articles on countermeasures, however, had been approved for the purpose of delimiting the scope of their application.  By doing so, the Commission had demonstrated that it was facilitating the progressive development of international law regardless of the difficulty of the task.

Turning to the item on the expulsion of aliens, he said important issues had been taken up that were related to the question, including dual and multiple nationalities, effective and dominant nationality, loss of nationality and denationalization.  To keep progress going, State practice should be taken into account, particularly since the Second World War, when human rights had come to be so strongly emphasized.  Relevant treaties and declarations should be examined so as to strike a delicate balance between the right of States to decide on the admission of an alien, which seemed inherent in State sovereignty, and fundamental human rights.

PATRICK HETSCH, Director of the European Commission Legal Service, speaking on behalf of the European Community, expressed concerns on the feasibility of subsuming all international organizations under the terms of one draft, in light of the highly diverse nature of such organizations.  The draft articles 46 to 51 on the invocation of responsibility by an injured State or international organization generally warranted support.  However, some points called for comment and additional thoughts, such as draft article 46 regarding the capacity of any international organization with a “legal personality” to bring claims on an international plane.  That capacity was not limited to bringing claims against States but also included a right to invoke the international responsibility of another international organization.  The same was true for draft article 47, in that the situation of international organizations did not differ from that of States in respect to notice of claims.

Addressing the specific examples on the admissibility of claims involving the European Community, he advised the Special Rapporteur not to equate the European Union with the European Community in the report, as there were important legal differences between the two.  Moreover, he noted that neither of the two Community examples was entirely pertinent for the issue of diplomatic protection.  On that issue, he added that it made sense to require the exhaustion of local remedies with respect to claims brought against an international organization in the area of diplomatic protection, as was laid down in draft article 48.  On draft article 50, on the issue of plurality of injured entities, he invited the Commission to underline in its commentary the need to support good faith solutions on a case-to-case basis that avoided the risk of presenting concurrent claims by several injured entities.

He said the situation of mixed agreements as they related to draft article 51 on the plurality of responsible States and international organizations needed to be further elaborated.  Turning briefly to the topic of countermeasures, he said that since the Commission had not formed an opinion on the draft committee’s proposals with respect to countermeasures, there was no need to comment in detail at the current time, although there was a rich Community practice on the issue that should be taken into account in ensuing discussions.  In the view of the Community, an injured international organization was, in principle, empowered to take countermeasures as a reaction to the breach of one of its rights under international law.  In conclusion, he expressed the European Community’s support for the new draft articles and its hope that the Commission would take note of the remarks made.  

POLLY IOANNOU ( Cyprus) said he was convinced of the need to elaborate rules on the responsibility of international organizations despite the limited practice available.  Given the diverse nature of the large number of such organizations, the codification of general rules was a necessity to regulate the field and to ensure cohesion.  This exercise was all the more pertinent considering the increasing association of many international organizations with the United Nations, particularly the Security Council.  The responsibility of international organizations extended not only to serious breaches of obligations under peremptory norms of international law, but also to cases where acts of the organization resulted in rights violations or injury.  These wrongful acts had to be approached objectively and by avoiding “a logic of exceptions to accountability”, based on either the draft articles or the internal rules of the organization.  Focus must remain on the nature and gravity of the wrongful act committed, “tailoring the ensuing consequences accordingly”. 

She said there were undeniable parallels between the draft articles on State responsibility and those on the responsibility of international organizations.  The Commission’s work on State responsibility could, therefore, find relevant application in respect of international organizations.  She commended the inclusion of the notion of invoking responsibility if the obligation breached was owed to the international community as a whole.  The same should apply for an international organization wishing to invoke the responsibility of a State in that same regard.  Moreover, an international organization could not evade its responsibility by invoking the positions of its member States, particularly where there was unwillingness to cover costs or assume the consequences stemming from the organization’s own behaviour.  The objective was to find an appropriate and effective legal methodology to deal with wrongful acts resulting from the actions or omissions of entities with an international legal personality other than States.

On countermeasures, she said this was an archaic issue.  The Commission should proceed with utmost caution in this respect and pay due attention to what exactly constituted countermeasures and the conditions under which an international organization could impose them, or be subjected to them.

GIORGIO GAJA, Special Rapporteur on the issue of the responsibility of international organizations, said the part of the Commission’s report related to this topic focused solely on the invocation of the responsibility of an international organization by a State or another international organization.  It followed the pattern of articles from previous reports on the responsibility of States for internationally wrongful acts.  The only exception was in article 1, paragraph 2, which applied to the international responsibility of a State for the internationally wrongful act of an international organization.  Paragraph 1 of draft article 57 was a “without prejudice clause”, dealing with lawful measures taken against a responsible international organization by a State or another international organization. 

He said there was a gap in article 19 which concerned circumstances for precluding wrongfulness with regard to countermeasures.  To fill the gap, something had to be said about whether international organizations could take countermeasures against States.  This additional topic did not belong in the text of the current articles on the responsibility of international organizations, but in a separate text.

Considerations of Further Topics

EDMUNDO VARGAS CARREÑO, Chairman of the International Law Commission, said the topic protection of persons in disasters had been added last year, and a report of Special Rapporteur Eduardo Valencia-Ospina had been before the Commission for consideration.  A comprehensive memorandum by the Secretariat, focused mainly on natural disasters, had provided an overview of existing legal instruments and texts that were applicable to aspects of disaster prevention, relief assistance and protection of persons in the event of disaster.

The debate in the Commission had revealed that the topic was complex, he said.  There was a paucity of State practice linked directly to the topic, and the challenge for the Commission had been to identify and set out suitable principles for it to achieve its statutory functions in the codification and progressive development of international law.  It had been considered essential to proceed deliberatively in systematizing the available material, including by analyzing the practice of non-States actors to identify best practices.

The central concept in elaborating the topic, he said, would be the definition itself of “protection” and the possibility of an all-encompassing definition of “disaster” that would exclude armed conflict from the scope, primarily because of a well-established regime of law already governing armed conflict.  Another consideration was to draw the parameters between the rights of individuals affected by disaster and the rights of the States affected by it.  Was a rights-based approach inclusive or exclusive of victims’ rights to humanitarian assistance?  To what extent should the rights of affected States be accommodated, in particular their right to sovereignty and their primary role in initiating, organizing and implementing human assistance as was consistent with the principle of subsidiarity?  What would be the basis for assisting persons affected by disaster?

A rights-based approach was perceived as well grounded in positive law, he said, particularly in international humanitarian, human rights and refugee law, and in the law relating to the internally displaced.  The imperative need to attend to victims in a timely manner, however, raised concerns about whether a rights-based approach would provide sufficient safeguards to protect people.  Whether the responsibility to protect should underpin the topic was also debated.  Furthermore, while it was considered premature to address the final form, it was decided it would be desirable to determine that as soon as possible, while draft articles were presented for consideration.

It was decided to proceed with a focus on natural disasters without losing sight of other types of disasters, he said.  A set of provisions would be elaborated to serve as a legal framework for the conduct of international disaster relief activities.  Clarifying the core legal principles and concepts involved would create the legal space in which the relief work could be carried out on a secure footing.  Completing the work would require extensive consultations, and contacts had already been initiated with parties such as the International Federation of the Red Cross and Red Crescent Societies.  Information would also be needed from States concerning practice, including examples of domestic legislation.  Reports of specific legal and institutional problems in dealing with disasters or responding to them would be particularly helpful.

Turning to the item on immunity of State officials from foreign criminal jurisdiction, he said this topic had also been added to the agenda last year.  Roman Kolodkin had been named Special Rapporteur and his report, along with another comprehensive memorandum by the Secretariat, had been before the Commission for its consideration.  The report had mainly summed up the work accomplished so far by the Commission and by the Institute of International Law.  Still to be covered were some procedural questions and the scope.

In general, he said, it was decided that the Commission should not consider, within this topic, questions of immunity before international criminal tribunals or before courts of the country to which the official belonged.  The view was also expressed that immunity of officials in consular positions had already been codified and did not need to be addressed again.  It was also agreed that the question was based on international law, particularly customary international law, and not merely on international comity, although the view was expressed that there was room for progressive development of international law in the field.

The Law Commission Chairman said comments on concepts such as “jurisdiction” and “immunity” raised questions about the rationale for granting immunity, the effect of the principle of universal jurisdiction on immunity and the distinction between personal and functional immunity.  A determination was to be made with regard to the precise persons to be covered by terms such as “State officials”, “agents” and “representatives”.  The effect on immunity of an official of a non-recognized State and immunity of family members were also to be considered, along with immunity involving crimes under international law.

With regard to the obligation to extradite or prosecute, he said the Commission had before it for its consideration the report of Special Rapporteur Zdzislaw Galicki and information received from Governments.  A revised version of draft article 1 on “scope of application” was considered, along with two new articles on the “use of terms” and “treaties as a source of the obligation to extradite or prosecute”.  A substantial part of the debate centred on methodology, with some calling for an analysis of the main questions arising from the subject and for specific proposals in light of relevant State practice and legal literature.

With respect to the articles, he said it was suggested that the concepts of “persons” or “persons under jurisdiction” should be defined separately.  It was also noted that no controversy was raised by the idea of treaties constituting a source of obligation on the matter.  With regard to future work, it was suggested that general substantive issues continue to be addressed, including the question of the source of the obligation, its relationship to universal jurisdiction, crimes subject to the obligation and the so-called “triple alternative” relating to surrender to a tribunal.  Procedural questions could then be taken up, such as the possible ground for denying extradition.  One view was to examine the elements independently from the source, and to propose articles on conditions for triggering the obligation and on contents.

At the conclusion of the debate, he said it was decided that the focus would be on the substantive issues and that reference would be made to the Commission’s work on the draft Code of Crimes against the Peace and Security of Mankind.  It was decided that a working group would be established, with a mandate and membership to be determined, at the Commission’s next session.

HEIDI SCHRODERUS-FOX (Finland), speaking for the Nordic countries and addressing the matter of the protection of persons in the event of disasters, noted that increasing numbers of people were affected by disasters every year, largely due to the inability of States to provide timely and effective protection.  In spite of existing instruments on the matter, there was room for further normative work in this regard.  The Special Rapporteur’s approach to the topic allowed for complementary, but not duplicative, work.  This approach was rights-based, taking into account not only the affected person’s perspective, but also serving as a point of departure for coherent codification efforts based on international human rights and humanitarian law.

She said the rights and obligations of affected States also had to be specified.  The right to humanitarian assistance, for instance, had to be complemented by rules concerning humanitarian access.  If a State was unable to ensure essential goods and services to the affected population, it had to cooperate with other States and organizations to provide it.  Although situations of armed conflict should be excluded from the topic, it did not make sense to draw a distinction between natural and man-made disasters from the affected person’s perspective.  On the notion of the “responsibility to protect”, the Commission should not refrain from looking at any aspect of protection or from exploring the interconnections between various areas of international law.

Turning to the obligation to extradite or prosecute, she called on States to provide to the Special Rapporteur working on the issue examples of practice in this regard.  This input might provide a basis for more in-depth research and analysis, thereby strengthening future consideration of the topic.  There was a strong link between the obligation to extradite or prosecute and universal jurisdiction with regard to international crimes; treaties on both matters provided “important strides forward for the international legal order” and were the result of common efforts with an underlying aim of ensuring that there was no impunity for serious crimes of concern to the international community.  She said she was interested in seeing more research into the issue of whether the obligation to extradite or prosecute was evolving into an obligation under customary law.

CHRISTOPH RETZLAFF (Germany) noted that the Special Rapporteur’s third report on the matter indicated that the development of international practice, based on the growing number of treaties establishing and confirming the obligation to extradite or prosecute, might lead to the beginning of the formulation of an appropriate customary norm; presently, there was no such customary international law.  Although he recognized the principle of universal jurisdiction and the right of every State to prosecute genocide, war crimes, crimes against humanity, slavery and piracy, he doubted there was a common opinion among States, or that sufficient evidence of State practice existed to assume that same obligation beyond these cases. 

He said that although there was an abundance of international conventions and bilateral and regional treaties containing an obligation to extradite or prosecute, the existence and scope of a customary rule might be established only if relevant State practice was evident in the absence of treaty obligations.  Recent judgements from national and international courts on this practice by the Special Rapporteur might be helpful.  However, this research must keep in mind that States applying the principle of reciprocity might seem as if they were obliging extraditions or prosecutions.  It should also be noted that the Rome Statute of the International Criminal Court deliberately left unanswered the question of whether third States shared the obligation to prosecute the most serious crimes of concern to the international community. 

Moving on to the protection of persons in the event of disasters, he stressed that the Commission should not duplicate the existing International Committee of the Red Cross Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance.  Drafting non-binding rules in line with these guidelines was, therefore, appropriate.  All phases of natural disasters and man-made disasters needed to be considered.  German national legislation on the protection of persons already reflected those guidelines.  Bilateral agreements with neighbouring countries were a good example of positive transnational cooperation.  These agreements assured mutual aid in the event of a serious accident or disaster and governed the mutual deployment of assistance teams.  Finally, he noted that the security environment for humanitarian aid workers was becoming increasingly difficult.  While these workers always faced various risks, there had been an increase in direct attacks; measures should be taken to improve this situation.

LIESBETH LIJNZAAD ( Netherlands) said the study on the protection of persons in the event of disasters could contribute to creating a legal framework for such people, which at present did not exist.  Caution should be exercised, however, against excessively high ambitions and an overly broad scope.  The Rapporteur should determine the focus more clearly, particularly with regard to defining terms such as “protection”, “disasters” and the notion of “persons in need of protection”.  A narrowly defined scope would enhance the possibility of identifying possible gaps in the current legal system in need of being codified or developed.  Duplication of existing norms should be avoided.  Detail should be provided on how the Commission’s work on the subject related to the Red Cross/Red Crescent Guidelines adopted last year.

On the question of the immunity of State officials from foreign criminal prosecution, she said it would be useful to establish whether, under customary international law, immunity applied to high ranking officials other than heads of State and Government and foreign affairs ministers.  Possible exceptions to immunity should be considered and the work should include the relation with the work of criminal courts and tribunals.  The distinction between “official” and “private” acts should be drawn.

Turning to the obligation to prosecute, she said that obligation was instrumental in achieving a global justice system in which perpetrators had no safe haven.  The relationship between the obligation and universal jurisdiction should be addressed and linked.  In the Netherlands, the courts had universal jurisdiction for genocide, crimes against humanity, war crimes and torture.  The crimes subject to the obligation should be considered, along with the issue of surrender to third party tribunals.  She addressed that her country was also intensifying efforts in that area with initiatives such as the European Union network of contact points on genocide, crimes against humanity and war crimes, and Interpol’s International Expert Meeting on those subjects.

MICHAEL SCHULTZ, Observer of the International Federation of the Red Cross and Red Crescent Societies, said his organization’s experience had given it a broad overview of managing disaster-related activities.  Last year, guidelines had been adopted at the Federation’s international conference.  A number of Governments had already begun to use the guidelines and it had been well received by numerous organizations related to humanitarian disaster relief.  The United Nations Economic and Social Council had also cited the guidelines in its disaster management work.  The guidelines would not solve all the regulatory problems involved in dealing with the many facets of addressing natural disasters, even if the guidelines were fully implemented.  But it was a balanced approach to the human right to receive assistance in a disaster, and the obligation of States to reduce risk and provide humanitarian assistance.  

He said the Federation was working well with both the Special Rapporteur and the Law Commission on the matter.  The scope of the articles was of central importance.  On that, there were two important points.  One was related to the fundamental right to offer and receive humanitarian assistance; the important distinction must be made with regard to the right and to how it was applied on the ground, and also the basic norms and principles of international law must be respected in both offering and receiving the assistance.  Secondly, the approach to be taken with providing assistance should be a needs-based one, but it must be a needs-based approach informed by rights.  The work in going forward on the matter must be informed by stakeholder consultations to create the appropriate framework.

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