SIXTH COMMITTEE HEARS OF PROPOSED TREATY ON
Law Commission Chairman Sees Prevention as Primary
NEW YORK, 2 November (UN Headquarters) -- The International Law Commission has recommended that the General Assembly elaborate a convention on prevention of transboundary harm from hazardous activities, which could impact on further development of international environmental law, the Sixth Committee (Legal) was told today as it began discussion of the Commission’s report on the subject.
Peter Kabatsi, Chairman of the Commission, addressing the first of two meetings of the Committee, said the Commission’s text comprised 19 draft articles, including a key provision that set out the general obligation of prevention on which the entire set of draft articles was based. The primary objective of the measures to be taken by States was the prevention of significant transboundary harm, while the minimizing of risk would constitute a secondary option in case the objective of prevention could not be attained. There was a provision on the rule for the settlement of disputes that might arise from the interpretation or application of the regime of prevention covered by the articles.
Addressing the separate but related issues of prevention and liability, the representative of the Netherlands called for a single convention covering both those aspects of transboundary harm. For now, he said, the General Assembly should take note of the draft articles which reflected customary international law and applied to States, and then alluded to the future codification of the draft articles as a convention.
The representative of Japan proposed that States should study the draft articles and that a Committee of the Whole of the Sixth Committee should then elaborate and adopt the text as a convention. The risk of transboundary harm could not be eliminated, despite whatever was done on prevention, he said. International liabilities were essential issues of the topic, but it would be necessary to establish a general principle to cover such fields as maritime environment, oil pollution, nuclear accidents, military activities and outer space.
Speaking on behalf of the five Nordic countries, the representative of Sweden said they were flexible about the final form the text should take, but would like further discussion on it with amendments before its adoption. For reasons of legal certainty, they preferred a convention.
The subject of prevention of transboundary harm was one of the most important aspects of international environmental law, Israel’s representative said. It dealt not with remedies such as restitution or compensation after harm had been done but with risk assessment and prophylactic measures to avert harm. The Commission had done well to give precedence to prevention over compensation.
Chile’s representative noted that the articles represented a regulation of liability for acts not illegal or unlawful, which filled a major gap in international law. Determining compensation or reparation for harm in such events was equally important.
Also speaking on the topic were the representatives of Bahrain, and China.
Earlier, the Sixth Committee had finished consideration of the Commission’s draft articles on State responsibility for internationally wrongful acts, which it began on Monday, 29 October. Speaking on that item were the representatives of Brazil, Iran, Slovakia, Guatemala, Colombia, Algeria and Bulgaria.
The Permanent Observer of Switzerland also spoke on the topic.
The Special Rapporteur on the draft articles on State responsibility, replying to comments, said it was obvious that the text and commentaries required further study. There was a strong feeling that note should be taken of the text and commended to Governments for further study. That would be the wise course to follow, he added.
The Sixth Committee will meet again at 10 a.m. on Monday, 5 November when it expects to conclude its discussion on international liability.
The Sixth Committee (Legal), continuing its review of the report of the International Law Commission’s 2001 session, met this morning to conclude its examination of the draft articles on State responsibility for internationally wrongful acts.
The Committee was then to take up another topic, also finalized by the Commission at that session -- international liability for injury arising out of acts not prohibited by international law (prevention of transboundary harm from hazardous activities). The Chairman of the International Law Commission, Peter Kabatsi, was to introduce its report.
MARCEL FORTUNA BIATO (Brazil) said the enormous development of international law in the last fifty years only added to the importance of the landmark text the Commission had finalized. The draft articles were a guideline for continued development of international law. They were a balanced middle ground in the far-ranging debate about the obligations accruing between States in view of the growing need for accountability to the international community.
On the issue of countermeasures, he said he was not convinced it belonged in the articles, since State responsibility should be limited to reparation and cessation of wrongful acts. Therefore the criteria proposed in the draft to avoid abuse were particularly important, and the principle of proportionality was welcome. Other useful elements in that regard were the exclusion of countermeasures affecting human rights, and the prohibition of resource to the use or threat of force, which meant that countermeasures, if adopted, must not be punitive but simply seek to re-establish respect for law. Ultimately, the assessment of such conditions would remain with the injured State, underscoring the need to develop effective mechanisms for scrutiny by other States and international organizations.
On the question of how to deal with international crimes, he said the compromise that had been adopted acknowledged the existence of peremptory norms. It had been prudent of the Commission to leave for future development issues involved in the difficult distinction between peremptory norms and obligations owed to the international community as a whole.
He said the articles were destined to be the most authoritative statement on the question of State responsibility. Any step less than adoption of the text in the form of an international convention would fall short of expectation. The articles should be attached to a resolution, recommending a convention to be negotiated by next year, preferably with the inclusion of provisions on the peaceful settlement of disputes.
DJAMCHID MOMTAZ (Iran) said the articles were a progressive advance in codifying international case law and were replete with examples that made them invaluable in both practical and academic terms. Particularly important were the issues of responsibility of a State for the conduct of a group, the conduct resulting from a serious breach, and countermeasures.
In reference to responsibility for conduct carried out under direction of the State, as covered in draft article 8, he spoke on aspects of distinguishing between the conduct of a person from that of a group. He said the responsibility of the State could be invoked only if it could be proven that the State had control over the group. Therefore, this area was best left to the guidance of the International Court of Justice. He said the issue of serious breach had been a source of great controversy in the Commission, and the finalized article concerning punitive damage was a good compromise of positions. The requirement that States have a responsibility to end wrongful acts presented problems and needed further provisions to be added.
Countermeasures, he said, were an archaic practice benefiting wealthy states. They only made States more intransigent and should be strictly regulated. The article on this issue was not rigorous enough, he added. It should be remembered that one could not be both judge and jury, that trying to establish countermeasures and settle disputes at the same time was in vain. There should be procedures for the peaceful settlement of conflicts. However, the articles did provide that countermeasures should be reversible and should not harm a State. The list of prohibited sanctions should have been more exhaustive. Also, the absence of a distinction between measures and countermeasures could cause confusion.
METOD SPACEK (Slovakia) said State responsibility was the most important topic the Commission had completed, and it was one of the landmarks in the Commission’s activities in its 53-year history. The text of the articles on State responsibility filled a major gap that had so far existed in the codification of international law. He commended the Commission for its major contribution to the strengthening of international legal order.
He said Slovakia considered the draft articles as a well-thought-out exposition of mostly customary international law, with some elements for its progressive development. He said the majority of the draft articles, as demonstrated by very useful commentaries, relied heavily on an extensive State practice, jurisprudence of international courts and arbitral tribunals.
He said he welcomed the fact that the Commission had abandoned the very controversial notion of State crimes, and instead included a chapter on serious breaches of obligations under peremptory norms of general international law. He supported the Commission’s decision to retain in the final text a separate chapter on countermeasures which were part of State practice. He was convinced that it was better to have conditions of countermeasures clearly spelt out in the draft text than to leave them to remain in the gray area of customary international law.
He said now was the time for the General Assembly to welcome with appreciation the work done by the International Law Commission, and to take note of the draft articles and annex them to a resolution. Later, perhaps in five years, the General Assembly could return to the topic and, in the light of reaction to the draft in State practice and judicial decisions, consider the issue of convening a diplomatic conference to adopt the text in a convention.
ROBERTO LAVALLE-VALDES (Guatemala) said that despite the Commission’s overall good work, some provisions of the draft articles needed improvement in substance and style.
Provisions of articles 16 and 17 were not entirely satisfactory. They dealt, respectively, with aid or assistance in the commission of an internationally wrongful act, and direction and control exercised over the commission of an internationally wrongful act. He said the application of the provisions could have undesirable consequences.
He said he regretted the article providing that a State assisting others could be exempted from responsibility in cases where the assistance was indispensable.
He said the Sixth Committee should continue to study the proposals put forward in the draft articles, so that the envisaged future diplomatic conference could incorporate them in examining the draft articles. His delegation supported the Mexican proposal that the General Assembly be asked to take note of the draft and thank members of the Commission for their work. It would be useful for the Assembly to ask Member States to submit comments on the text for consideration at its fifty-seventh session next year.
JURG LINDENMANN observer for (Switzerland) said the Assembly should take note of the articles, and a convening of plenipotentiaries should take place only later. The subject matter was delicate and the coherence of the articles could be disrupted if subjected to the political process now. In the long term, a convention on State responsibility was necessary and would become a pillar of international law.
He said he had reservations on the article concerning State responsibility, because the obligations of the "coercing State" were not taken into account. So there could be a situation where a State could be coerced by another into committing a wrongful act, and the coercing State would have no responsibility in the event. Also, the Commission had stressed the scope of peremptory norms in relation to State responsibility. The article dealing with the form and extent of State responsibility for cooperation in ending harmful acts should provide for the recognition that the relative means and circumstances of the cooperating State entered into the situation. Perhaps some qualifying term should be added to indicate circumstance.
On the issue of countermeasures, he said the articles should contain a mechanism for settlement of disputes. It was better to regulate countermeasures than to ignore them. The articles should clarify the distinction between measures and countermeasures.
Overall, he said the draft articles were welcome. The future would prove their form and role in international law.
FERNANDO HINESTROSA (Colombia) said the issue of State responsibility was one of the most important areas of international law today. Once adopted as a convention, the articles would be a pillar of international law, equal to treaties and the instrument on the peaceful settlement of disputes.
He referred to aspects of the articles that were of particular note to him. He said they should have offered some specific guidelines for resolving disputes. His country had already expressed reservations on countermeasures; the lack of provisions on a mechanism for settling disputes heightened those reservations. The articles on countermeasures and obligations of States were not rigorous enough; they did not address the ambiguity inherent in so much being left up to States relative to countermeasures.
He said the General Assembly should take note of the articles and should annex them to a resolution. The resolution should state that the Assembly would continue considering the convening of a meeting of plenipotentiaries for adopting the articles as a convention.
On the topic of preventing transboundary harm from hazardous activities, he said there should be no haste; the draft articles should be adopted as a set of principles or guidelines that could be used as a reference in bilateral and other agreements. Goodwill would facilitate agreement on a final form for those articles.
ALI HAFRAD (Algeria) said State responsibility was one of the most fundamental aspects of international law. Codification of the draft articles represented a best guarantee for international peace and security.
On the provisions in the text on countermeasures, he said his delegation at previous sessions expressed reservations about them. Account should be taken of the inequality between States in any discussion of countermeasures. That had been the view in the progressive development of international law.
He quoted the provisions of the article on obligations not affected by countermeasures. They included the obligation to refrain from the threat or use of force as embodied in the United Nations Charter; obligations for the protection of fundamental human rights; obligations of a humanitarian character prohibiting reprisals; and other obligations under peremptory norms of general international law.
He said it was necessary to spell out the conditions under which countermeasures would be applicable. Countermeasures should not be perceived as punitive but as a means to ensure that States honoured their obligations.
On the subject of diplomatic protection, he said it was a responsibility of States. Its history was largely one of political expediency. Exercise of diplomatic protection could not be justified by the use of force, and it was inconceivable that States should attempt to do so.
KATYA TODOROVA (Bulgaria) said the draft articles and the commentaries on them constituted an important contribution to the development of international law and its application. The text required deep analysis by Governments. It was appropriate that the General Assembly take note of it in a resolution to which the text would be attached. Her delegation also supported the Commission’s other recommendation, that the Assembly consider, at a later date, the convening of a diplomatic conference to examine the text and adopt it in a convention.
On the topic of international liability for injury arising out of acts not prohibited by international law (prevention of transboundary harm from hazardous activities), she said prevention was the best policy to ensure environmental protection. She noted with satisfaction that her Government’s views on the topic, articulated in the Sixth Committee, had been reflected in the finalized draft articles on prevention. She was not opposed to its codification as a convention.
JAMES CRAWFORD, Special Rapporteur on the draft articles on State responsibility, replying to comments made during consideration of the topic, said finalization of the articles was substantive, and a collective endeavour. Compromises had to be made to achieve a general agreement. He was gratified that the text had generally been welcomed.
He said it was obvious that the draft articles and the commentaries on them required further study, adding that it was obvious that Governments could not be expected to sign on to the text soon. There was a strong feeling that note should be taken of the text and commended to Governments for their further study. Speaking personally, he said that would be the wise course to be followed.
PIERRE LELONG (Haiti), Chairman of the Sixth Committee, on behalf of the Committee, paid tribute to Mr. Crawford for his important role in the finalization of the draft articles.
Prevention of Transboundary Harm
The Committee next took up the topic of International Liability for Injury Arising out of Acts not Prohibited by International Law (Prevention of Transboundary Harm from Hazardous Activities).
PETER KABATSI, Chairman of the International Law Commission, recalled that in 1992 the Commission divided the topic "International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law (Prevention of Transboundary Harm from Hazardous Activities)" into two, and decided to deal with the issue of prevention first. It completed the second reading of the articles on prevention and adopted the final text on Prevention of Transboundary Harm from Hazardous Activities. He drew attention to the Commission’s recommendation that the General Assembly elaborate a convention on the basis of the draft articles.
He pointed out that the Commission did not, in principle, include preambles to the texts that it prepared, but it did so in this case to better project the balance of interests that had been the underlying theme of the entire draft articles on the topic.
The preamble referred to the principle of permanent sovereignty of States over their natural resources, and also to the counterbalance to that principle, namely that the freedom of States to carry on or permit activities in their territory or otherwise under their jurisdiction or control was not unlimited. The basis of those carefully balanced principles were rooted in the Stockholm and the Rio Declarations on the environment, which had been among the important principles guiding the Commission’s work on the topic.
He said the text comprised 19 draft articles, beginning with article 1 on the scope. Article 2 defined six commonly used terms in the draft. Article 3 was a key provision, setting out the general obligation of prevention on which the entire set of draft articles was based. Other articles set out the more specific obligations of States in that regard.
The primary objective of the measures to be taken by States was the prevention of significant transboundary harm, while the minimization of risk would constitute a secondary option in case the objective of prevention could not be attained.
He said article 4 dealt with cooperation among the States concerned which constituted an essential part of designing and implementing effective policies to prevent transboundary harm or minimize the risk. More specific forms of cooperation were stipulated in subsequent articles.
Article 6 set forth the fundamental principle that the prior authorization of a State was required for activities that fell within the scope of the articles. The requirement was also applied to pre-existing activities and to any major change to an activity already taking place. Article 7 required prior assessment of the possible transboundary harm of an activity before granting authorization. He said the requirement was consistent with the contemporary trends in international law requiring environmental impact assessment of any activity that might cause significant environmental harm.
He said article 13, dealing with information to the public, was inspired by the new trends of seeking to involve people whose lives, health and property might be affected in a State’s decision-making process by providing them with a chance to present their views.
He drew attention to article 18 that established the relationship between the rights and obligations of States under those articles and other international obligations, whether treaty based or based in customary international law.
Finally, he said article 19 provided a basic rule for the settlement of disputes that might arise from the interpretation or application of the regime of prevention covered by the articles.
HUSAIN AL BAHARNA (Bahrain) said the text of these 19 articles provided a reasonable balance of interests between those of the State of origin and those of the State likely to be affected.
He commented on the legal context of specific terms in the articles, such as "significant transboundary harm". He said the major issue of "prevention," as expressed in the articles with regard to transboundary harm, had a number of aspects. One of those covered activities not prohibited by international law; another addressed the concept of due diligence. Others concerned the principle of cooperation, the question of liability in its relation to prevention and the form of the draft articles and dispute settlement procedure.
After reviewing each of those issues, and addressing questions that had been raised, he said the subject of international liability was a main component of the equation, along with prevention. There was ample material on the topic of international liability both in State practice, jurisprudence and international agreements. Those should be explored and studied.
Notice should also be taken of international agreements that had dealt with rules on civil liability. The Commission should finalize an integrated text of a convention combining prevention and liability in a single framework convention, under the present long title of the topic.
On the issue of dispute settlement, he said article 19 needed improvement. Assuming the draft articles would be adopted in the form of a framework convention on prevention, more specific provisions on settling disputes would be needed. It should go further than it did, by providing that the parties to the dispute should have the option of submitting the dispute, by mutual agreement, to either arbitration or judicial settlement.
XUE HANQIN (China) said the question of preventing transboundary harm from hazardous activities must be addressed effectively because it impacted on people’s lives and activities. A number of international environmental treaties had dealt with specific measures for protecting the environment but many areas remained uncovered by laws. The articles elaborated by the Commission were the first ever to deal with preventing transboundary harm by way of general rules of international law.
She said the completed work on the draft articles would include provisions on such issues as risk assessment, technical design approvals, adoption of preventive measures, timely notification in case of accidents and international cooperation in case of emergencies. That would provide important guidance on elaborating principles to serve as the foundation for international laws. It would also be a practical guide to elaborating international legal instruments on environmental protection. As the world’s largest developing country, China was concerned to develop the international legal regime in the field of environmental protection.
JOHAN LAMMERS (Netherlands) said he had noted the Commission’s recommendation that the draft articles be elaborated as a convention, but he doubted they should be taken up at the diplomatic level before the Commission had finished its other work on this the matter, or had at least made significant headway.
He said "prevention" and "liability" were two distinct yet related issues. The elaboration of a convention covering both, as a package, should be explored. For now, the Assembly should take note of the draft articles on transboundary harm, which reflected customary international law and were applicable to States. The Assembly should urge the Commission to continue its work on the topic and complete it as soon as possible.
Turning to the second part of the work on the present topic, he directed attention to article 15 dealing with the principle of non-discrimination to persons seeking access to judicial or other procedures, for protection or other appropriate redress. He said it was a good starting point for further work and suggested that the Commission develop procedural standards on access to justice and substantive standards on liability and redress for harm suffered. The first of these could include provisions on identifying the competent court or the designation of the applicable law; the other could include provisions on the channeling or limitation on liability. Such standards would ensure that domestic and foreign victims could avail themselves of legal remedies and would be remedied for any losses incurred.
The meeting was adjourned.
The Sixth Committee met again this afternoon to continue its deliberations on the international liability for injurious consequences arising from acts not prohibited by international law (prevention of transboundary harm from hazardous activities).
The International Law Commission completed its second reading of the prevention aspect of the topic at its 2001 session, and adopted the final text of draft articles on prevention of transboundary harm from hazardous activities.
CHUSEI YAMADA (Japan) said his government basically supported the approach taken in the draft articles establishing a set of certain procedural requirements for activities involving a risk of significant transboundary harm. Japan welcomed the introduction (article 19) of the compulsory recourse to an impartial fact-finding commission within the framework of dispute settlement, the procedure for which had become customary environmental law.
It had no objection to the elaboration of a convention on the text by the General Assembly as recommended by the Commission. It would like a procedure similar to that followed in the adoption of the Convention on the Law of Non-Navigational Uses of Watercourses in 1997. He proposed that States study the draft articles and then a Committee of the Whole of the Sixth Committee could elaborate and adopt the draft articles as a convention on prevention of transboundary harm from hazardous activities.
The Commission must now consider how to proceed further on the topic of international liability for the injurious consequences arising out of acts prohibited by international law. He observed that the risk of transboundary harm could not be eliminated, despite whatever was done on prevention. The international liabilities aspect of the activities covered by the draft articles on prevention were the essential issues of the topic. It might not be an easy task to establish a general principle to cover all fields such as maritime environment, oil pollution, nuclear accidents, military activities and outer space.
His delegation was, accordingly, not optimistic about the possibility of the codification of a general rule on international liability. The work done so far on prevention was not sufficient to enable the book to be closed on damages arising out of activities not prohibited by international law. It would be appropriate for the Commission to study further the issues regarding international liability for activities involving risk of transboundary harm, including judging whether such codification was feasible or not and, if so, to specify the scope of the work.
He reaffirmed Japan’s continuing support for the activities of the International Law Commission and hoped the General Assembly would adopt a resolution on the topic as recommended by the Commission.
YORAM DINSTEIN (Israel) said the subject of preventing transboundary harm was one of the most important aspects of international environmental law. It dealt not with remedies such as restitution or compensation after harm had been done but with risk assessment and prophylactic measures to ensure the harm would be avoided. The Commission had done well to give precedence to prevention over the related subject of compensation and other relief.
He said that in theory the underlying issue was of clashing sovereignties. On the one hand, there was a State of origin exercising full sovereignty within its own territory and being the arbiter of activities within its jurisdiction. On the other side was international law, which did not allow sovereignty to be exercised arbitrarily in a manner negating or disregarding rights of other States. The State likely to be affected by external hazardous activities should be able to protect itself. That gave rise to clashes in sovereignties and eventually to controversy, ill will and clashes. Only dispute prevention and management could balance the conflicting interests of two States and minimize the risk of transboundary harm.
The text of the articles served that purpose, he said. Its core revolved around the duty of States to cooperate in good faith and to seek the assistance of an international organization to settle a dispute if necessary. The harm that was to be prevented could be a risk to persons or property, but environmental risks were of global significance. Therefore, the prevention of harm in that regard took precedence over any procedure for assessing damage after a disaster had struck. In the same way, the responsibility of States to cooperate in good faith to avoid transboundary harm must transcend political tensions. Possibly, the good offices of a third State would have to be invoked in the event of a standoff.
ALEJANDRA QUEZADA (Chile) said the articles represented a regulation of liability for acts not illegal or unlawful, and thus filled a major gap in international law. Determining compensation or reparation for harm in such events was equally important. A weakness of the articles was that they referred only to States’ terrorities, which left shared spaces such as the sea or air unprotected. Polluting activities tended to produce effects at a distance from the events themselves.
Specifically, it was important to note that not all aspects of harm were covered, she said. Further, a generic list of environmental hazards or hazardous activities was quite useless because new conditions of risk were being identified daily. Enumerating points covered by the articles, she said there were provisions for the eventuality that the source country would be liable to repair damages. The levels of development of the States involved must be taken into consideration. Also, while a definitive prohibition of certain activities was not appropriate, the concept of due diligence implied the precept that "the polluter pays". In the event of emergencies or accidents, information must be made available to people but must be disseminated in line with the national norms.
In summary, she said the draft took a framework approach to those matters. The norm was insufficiently drafted. Article 19 on conflict resolution was too long. It addressed various mechanisms unnecessarily.
BERTIL ROTH (Sweden), speaking also for the other Nordic countries (Denmark, Finland and Norway), said they questioned the threshold of "significant" as a general condition for the application of the draft articles on prevention. He said prevention should be applicable also to risks to areas outside of national jurisdiction. There should be stronger reference to environmental impact assessments (article 7).
While it was impossible to provide a ready-made formula for the equitable balancing of interests, he said there was an apparent risk that parties would assess the situation differently. That called for a strong dispute settlement clause.
He said the Nordic countries would like article 13 strengthened, to ensure that the public was able to present views and influence the decision-making process. In that context, he recalled the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters.
He said there should also be an element of proportionality in article 14, which provided a narrow exception to the obligation of the State of origin causing transboundary harm to provide information under the articles. The exception covered information considered vital to national security, or to the protection of industrial secrets or concerning intellectual property.
The Nordic countries were flexible about the final form the text should take, he said. However, it should be discussed and open to amendments before being adopted.
On the other aspects of the topic, he said they would like to see a document covering prevention as well as the liability aspects, such as compensation and response action.
On the topic of reservations to treaties, which was considered by the Commission at its session, the Nordic countries continued to take an interest because of its important practical implications. They were convinced that the planned Guide to Practice would be of great practical value to governments.
He said the Nordic countries raised serious concerns about the possible extension of the competence to make reservations as dealt with by the Special Rapporteur on the matter. They said the integrity of article 7 of the Vienna Convention on the Law of Treaties must be respected. The circle of persons who, by virtue of their functions, or by producing full powers, were considered as representing their States was well established and should not be altered. They agreed with the Commission’s statement in its report that a distinction should be made between the competence for making a reservation under domestic law and its expression at the international level. They urged the Commission to avoid addressing the issue in the guidelines on reservations.
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