25 October 2005
Work of International Law Body Is Praised as Legal Committee Begins Debate on Annual Report; Nine Major Topics for Review
Commission Chairman Says Advice from Governments, Reaction to Policy Issues, Important Part of Ongoing Codification Efforts
NEW YORK, 24 October (UN Headquarters) -- The Sixth Committee (Legal) this morning began its debate on the 2005 report of the International Law Commission, generally considered the highlight of the Committee's work at each General Assembly session.
Introducing the report on its work this year, Djamchid Momtaz of Iran, Chairman of the Commission, said the body saw an important role for itself in the global effort to ensure international law in the age of interdependence and globalization. It relied on the Sixth Committee for advice from Governments, and for their reactions to larger policy issues, as well as for providing the Commission with those State practices which were not always accessible or open to the public. He said the Commission's success in codification of international law, therefore, depended to a large extent on the support it received from the Committee and Governments.
The Chairman of the Sixth Committee, Juan Antonio Yáñez-Barnuevo, Spain, on behalf of the Committee expressed deep admiration and appreciation for the Commission's contribution to the progressive development of international law.
The International Law Commission, established by the General Assembly in 1947 to promote the progressive development of international law and its codification, is currently considering nine topics.
At today's meeting, most of the debate focused on draft articles which had been elaborated on the responsibility of international organizations and on the legal issues involved with the expulsion of aliens. Several speakers also welcomed the timely inclusion in the Commission's agenda of the new topic of the principle to "extradite or prosecute".
The Commission, which meets annually, is composed of 34 members who are elected by the General Assembly for five-year terms and who serve in their individual capacity, not as representatives of their Governments.
Speaking in the debate were the representatives of Ireland, Morocco, China, Spain, Austria, Canada, France, Iran and the Republic of Korea.
The Committee will meet again tomorrow, 25 October, at 10 a.m. to continue its discussion of the Law Commission report.
The Sixth Committee (Legal) met this morning to begin consideration of the report of the International Law Commission (A/60/10) covering the work of its fifty-seventh session, which was held in two parts from 2 May to 3 June and from 11 July to 5 August in Geneva. The Commission proposed that its fifty-eighth session be held in Geneva from 1 May to 9 June and from 3 July to 11 August 2006.
According to the report, the Commission decided to start the second part of its 2005 session on 11 July, thereby reducing its duration by a week. It set up a planning group to consider its programme, procedures and working methods. It decided to include in its current programme of work one new topic, "the obligation to extradite or prosecute (aut dedere aut judicare)", and appointed Zdzislaw Galicki as Special Rapporteur for it.
Topics dealt with by the Commission during its fifty-seventh session were "shared natural resources"; "effects of armed conflicts on treaties"; "responsibility of international organizations"; "diplomatic protection"; "expulsion of aliens"; "unilateral acts of States"; "reservations to treaties"; and "fragmentation of international law".
On "shared natural resources", the report states that the Commission was focusing, for the time being on codification, of the law on transboundary groundwaters (aquifers and aquifer systems). The work was progressing in the form of elaboration of draft articles proposed by its Special Rapporteur on the topic, Chusei Yamada. His third report, considered at the session, contained a complete set of 25 draft articles. A working group reviewed the draft articles and revised eight of them. The group recommended that it be reconvened in 2006 to complete its work.
The Commission considered the first report of its Special Rapporteur on "effects of armed conflicts on treaties", Ian Brownlie. The report presented an overview of the issues involved in the topic, together with a set of 14 draft articles. The Commission endorsed the Special Rapporteur's suggestion that a written request for information be circulated to member Governments. The report indicates that the Commission would welcome information on contemporary State practice.
On "responsibility of international organizations", the Commission considered the third report of its Special Rapporteur, Giorgio Gaja, who proposed nine draft articles dealing with the existence of a breach of an international obligation by an international organization and the responsibility of an international organization in connection with the act of a State or another international organization. The Commission adopted the articles (articles 8 to 16), and requested comments from Governments on specific issues related to the topic.
On "diplomatic protection", it considered the sixth report of its Special Rapporteur, John Dugard, which dealt with the "clean hands" doctrine. According to the report, general support was expressed for the Special Rapporteur's conclusion that the doctrine should not be included in the draft articles on diplomatic protection. The report states that the doctrine had been raised primarily in the context of claims for direct State injury, which was beyond the scope of diplomatic protection, and that the few cases falling within that scope did not constitute sufficient practice to warrant codification.
With regard to the topic "expulsion of aliens", the Commission examined the preliminary report of the Special Rapporteur, Maurice Kamto, which gave an overview of some of the issues involved and a possible outline for its further consideration. The Commission called for information on State practice on the subject from Governments.
On "unilateral acts of States", the Commission considered the eighth report of the Special Rapporteur, Víctor Rodríguez-Cedeño, which contained an analysis of 11 cases of State practice and conclusions. A working group on the topic was reconstituted and its work focused on the study of State practice and on the elaboration of preliminary conclusions on the topic which the Commission should consider at its next session.
The Commission adopted a number of draft guidelines with commentaries prepared by its drafting committees on the topic "reservations to treaties".
On "fragmentation of international law", the Commission heard a briefing by the Chairman of the Study Group, Martti Koskenniemi, on the status of its work on the topic. According to the Commission's report, the study group, which was established by the Commission, envisaged that it would be in a position to submit a consolidated study, as well as a set of conclusions, guidelines or principles, to the fifty-eighth session of the Commission in 2006.
The report of the International Law Commission states that the Commission continued its traditional exchanges of information with the International Court of Justice, the Inter-American Juridical Committee, the Asian-African Legal Consultative Organization and the European Committee on Legal Cooperation, as well as the Committee of Legal Advisers on Public International Law of the Council of Europe. Commission members also held informal meetings with other bodies and associations on matters of mutual interest. A training seminar was held with 24 participants of different nationalities.
The International Law Commission was established by the General Assembly in 1947 to promote the progressive development of international law and its codification. The Commission, which meets annually, is composed of 34 members who are elected by the General Assembly for five-year terms and who serve in their individual capacity, not as representatives of their Governments.
Most of the Commission's work involves the preparation of drafts on topics of international law. Some topics are chosen by the Commission and others are referred to it by the General Assembly or the Economic and Social Council. When the Commission completes draft articles on a particular topic, the General Assembly usually convenes an international conference of plenipotentiaries to incorporate the draft articles into a convention which is then open to States to become parties.
The officers of the International Law Commission are: Chairman, Djamchid Momtaz (Iran); First Vice-Chairman, Guillaume Pambou-Tchivounda (Gabon); Second Vice-Chairman, Roman A. Kolodkin (Russian Federation); Chairman of the Drafting Committee, William R. Mansfield (New Zealand); and Rapporteur, Bernd H. Niehaus (Costa Rica).
Introduction of Commission's Report
JUAN ANTONIO YÁÑEZ-BARNUEVO, ( Spain), Chairman of the Sixth Committee, said the consideration of the International Law Commission's report had always constituted a high point in the Sixth Committee's work. The Committee's debates on the report had always been substantive and stimulating, and he hoped this year's would not be any different. He told the Committee that consideration of the report would be "by theme and in clusters".
DJAMCHID MOMTAZ ( Iran), Chairman of the International Law Commission (ILC), introducing its report (A/60/10), said that to facilitate a more focused discussion, he would introduce the Commission's report in three parts. Part One, in addition to the introductory chapters I to III, dealt with two substantive chapters (chapters VI and VIII) and the last chapter, chapter XII. Chapter VI dealt with the topic of responsibility of international organizations and chapter VIII dealt with expulsion of aliens. Chapter XII dealt with other decisions of the Commission. Part Two would introduce chapter IV on shared natural resources, chapter IX on unilateral acts of States, and chapter X on reservations to treaties. Finally, Part Three would introduce chapter V on effects of armed conflicts on treaties, chapter VII on diplomatic protection, and chapter XI on the fragmentation of international law.
Mr. Momtaz said the Commission was well aware of the importance of international law in the contemporary world and in the age of interdependence and globalization. It saw an important role for itself in that global effort, and its contributions in clarifying international law had been in more contemporary and emerging practices and norms, in addition to the classical areas.
The Commission, he said, relied on the Sixth Committee for advice from Governments and for their reactions to larger policy issues, as well as for providing it with those State practices which were not always accessible or open to the public. The Commission's success in codification of international law, therefore, depended to a large extent on the support it received from the Sixth Committee and Governments. He said the Commission had had a productive session, and had begun the consideration of two new topics, in addition to the existing seven.
On the topic of responsibility of international organizations, he said the Commission's Special Rapporteur had presented his third report that dealt with the existence of a breach of an international obligation by an international organization, and the responsibility of that body in connection with the act of a State or another international organization, for which the Rapporteur had proposed nine draft articles (srticles 8 to 16). The Chairman said these were adopted by the Commission, and he went on to review their various provisions.
Draft articles 8 to 11 addressed various aspects of the conduct of an international organization which constituted a breach of one of its international obligations. He said that although available practice with respect to international obligations was limited, the State responsibility provisions of the text expressed general principles applicable to the breach of an international obligation by any subject of international law.
The Chairman said that draft articles 12 to 16 addressed various aspects of the responsibility of an international organization in connection with the act of a State or another international organization. Those provisions were similar to the corresponding articles on State responsibility, which the Commission had previous dealt with separately.
According to the Chairman of the Commission, the Special Rapporteur intended to address in his fourth report, due in 2006, questions relating to the circumstances precluding wrongfulness and the responsibility of States for the internationally wrongful acts of international organizations.
He said it would be particularly helpful if Governments would provide views as to whether the Commission should include in the draft articles on international organizations provisions concerning cases in which a State: (1) aided or assisted an international body in the commission of an internationally wrongful act; (2) directed or exercised control over the commission of such an act; or (3) coerced the commission of an act that would, but for the coercion, be an internationally wrongful act. The Commission would also like to know whether there were other cases in which a State could be held responsible for the internationally wrongful act of an international organization of which it was a member.
The Law Commission Chairman next turned to "expulsion of aliens", the second of two new topics taken up by the Commission. He said there was general agreement in the Commission on the framing of the basic issue underlying the topic by the Special Rapporteur who handled it -- namely, how to reconcile a State's right to expel with the requirements of international law, particularly, those relating to the protection of fundamental human rights. A key question concerned the concept of expulsion of aliens to be applied, in terms of the scope and the definition of its key terms. The Commission also considered the question of the grounds for expulsion.
Turning to methodological questions, he said the Commission generally supported the Special Rapporteur's proposal that the focus should be on drafting articles covering all aspects of expulsion, that is, a complete regime including existing conventional rules. The Secretariat was entrusted with the task of compiling applicable national and international instruments, texts and jurisprudence on the topic. The Chairman said the Commission would appreciate receiving information concerning the practice of States on expulsion of aliens, including their national legislation.
On other decisions of the Commission, he said it attached great importance to the International Law Seminar which was held annually in Geneva during the meetings of the Commission. The seminar enabled young lawyers, especially those from developing countries, to familiarize themselves with the Commission's work and the activities of the many international organizations located in Geneva.
The Chairman expressed the Commission's appreciation to its own Secretariat, the Codification Division of Legal Affairs, for their competence, efficiency and their valuable assistance. He said the fact that the Codification Division served also as the Secretariat of the Sixth Committee provided an invaluable and irreplaceable link between the two bodies.
PATRICIA O'BRIEN ( Ireland) first addressed the Commission's work on the responsibility of international organizations, saying it was a complex project made all the more difficult by the paucity of practice upon which to draw in formulating the articles. She limited her comments to the relationship between articles 3, 4 and 15, and the reference to the rules of the Organization in article 8. She said there was a need to further develop the relationship between draft articles 3, 4, and 15 which dealt with holding international organizations responsible for the acts of its member States in certain circumstances and for the acts of its agents or organs. She illustrated their relationship by reference to a recent case, Bosphorus Airways vs. Ireland, before the European Court of Human Rights. "The case arose", she said "in the context of the trade sanctions imposed by the United Nations on the former Socialist Federal Republic of Yugoslavia."
As was noted in the Commission's report, she said, an international organization should not be allowed to escape responsibility by "outsourcing" its actors. Similarly, it should not escape responsibilities by seeking refuge behind the protective screen of an international organization.
On article 8, she said that, at present, action taken against international organizations for breaches of internal rule tended to be of a more political or administrative nature. She welcomed the wording of article 8 saying that the draft articles should avoid pronouncing on the legal status of such rules.
MOHAMED BENNOUNA ( Morocco) welcomed the new topic of "extradite or prosecute", describing it as a crucial issue in current international relations. Addressing the topic of shared resources, he said the Commission had adopted a positive approach in dealing specifically with shared groundwater resources. International cooperation was essential in the management of shared resources. He appreciated the inclusion of a specific provision for developing States in the draft articles.
As to the effects of armed conflict on treaties, he said he believed it was appropriate to include both treaties by States and treaties by international organizations. The draft articles should apply to armed conflicts whether or not war had been declared. He questioned whether it might not be better to stress the nature of a treaty and its applicability, rather than drafting an exhaustive list of treaties.
It was logical, he continued, that the Commission should pursue the topic of responsibility of international organizations after completing draft articles on responsibility of States. He suggested that there be further study of whether it was possible to include complicity of States in wrongful acts by international organizations. He was glad to see that a majority of Commission members supported the approach of the Rapporteur to the topic of protection of diplomats, in discarding the theory of "clean hands". He expressed the hope that the draft articles would be adopted next year after their second reading.
In describing the topic of expulsion of aliens as an important and timely one, he noted that for the first time the question of international migration would be included on the agenda of the General Assembly. In tackling the delicate aspect of the status of aliens, he said, the preliminary report was a good introduction to subject. The Commission would have to determine how to reconcile the right of a State to expel, with the obligation to protect fundamental human rights. It would need to be defined in a way that was not counter to international humanitarian law. He encouraged the undertaking of an in-depth of national legislations so to outline the main trends and practices by States.
Unfortunately, the Commission had not been able to define the limits and scope of the subject of unilateral acts of States in order to codify those acts. The results had fallen short of the efforts that were being made. He concluded with comments on the topic of reservation to treaties and on the fragmentation of international law.
LIU ZHENMIN ( China), speaking first on the responsibility of international organizations, said that, on the whole, China could support the nine draft articles. However, he added a few comments on the specifics of some of them. Whether an omission on the part of an international organization constituted an internationally wrongful act depended fundamentally on whether the organization was explicitly obligated under international law to take action. He suggested further study to determine whether there was a justification in distinguishing between an organization's recommendations and its authorizations, as being different from its decisions, because responsibility arose only when the former were implemented by member States.
He said it seemed necessary to include a provision on a State's international responsibility when aided or assisted, directed and controlled or coerced by an international organization in the commission of an internationally wrongful act. As a rule, he added, decisions and actions of an international organization were under the control of or relied on the support of member States.
On the expulsion of aliens, he said he agreed with the focus of the study. A comparative study should be conducted, as a priority, drawing on the rules and practice of domestic law of all States, relevant rules of international law and jurisprudence of international and regional judicial bodies so as to produce a whole set of general and complete underlying rules of international law. He expressed the hope that the Commission would give equal consideration to developed and developing countries when gathering information. Refusal of entry was a highly complex issue that could not be addressed with an across-the-board approach. Expulsion of a population on a large scale as a result of a territorial dispute should not be covered under the topic, since it brought in sensitive political issues and did not lend itself to such treatment from the legal point of view. The right to expel was an inherent right of States, but States should safeguard basic human rights and dignity to ensure humanitarian treatment of the aliens expelled.
D. JULIO GONZÁLEZ-CAMPOS ( Spain) said it might be desirable in future for the International Law Commission to give preference to certain topics on its work programme on the basis of their relative development, so that the first reading of certain texts on its agenda could be concluded.
He said he believed the Commission's work in 2005 showed that progress was made on the topic of shared natural resources, and that the Commission now had an excellent basis for future work on the topic. The same applied to work done on the topic of responsibility of international organizations. He welcomed the inclusion of a new topic on the obligation to prosecute or extradite.
He agreed with the approach taken concerning the report on effects of armed conflicts on treaties, saying a global perspective was provided. He hoped that next year there would be a complete draft ready for a second reading on the articles on diplomatic protection. He said that progress could be made on the topic of unilateral acts of States, despite the complexity and difficulties involved with the subject. The Commission should aim for the codification and progressive development of international law in that area. The Commission should not be overambitious and should limit the scope of the topic.
FERDINAND TRAUTTMANSDORFF ( Austria) focused on article 8 (existence of a breach of an international obligation) paragraph 2 and on article 15 (decisions, recommendations and authorizations addressed to member States and international organizations) on the topic of responsibility of international organizations. He said paragraph 2 should be deleted, explaining that it was designed to clarify the provisions of paragraph 1 which also applied to the breach of an obligation under international law established by a rule of the organization. He also said article 15 paragraph 2 should be reconsidered. Provisions of the paragraph spelled out acts by which an international organization would incur international responsibility. He said it was doubtful whether paragraph 2 of that article would in its present form contribute to clarifying, or rather complicate, the relationship between the responsibility of a member State acting wrongfully upon the authorization or recommendation of an organization and the responsibility of the latter organization. The question should be asked whether and to what extent an international organization should be held responsible for recommendations and authorizations.
In order for an internationally wrongful act of a Member State to create the responsibility of an organization authorizing or recommending it, he said a very close connection between the authorization or recommendation and the relevant act of the member State would be required; the articles on State responsibility -- already prepared by the Commission -- did not provide responsibility for incitement, and it could, therefore, be asked why international organizations should become responsible for recommendations which were similar to incitements as far as their effect was concerned.
With regard to questions by the Commission regarding the responsibility of international organizations (chapter III of the Commission's report), he said that in response to question (a) Austria held the view that the Commission should deal with the legal consequences of aid and assistance, direction and control, as well as coercion exercised by a State with respect to an international organization. As to the content, he said the draft should follow the principles contained in the articles on State responsibility wherever appropriate, to avoid unnecessary confusion within the field of international responsibility. With regard to question (b), he said the case law of the European Court of Human Rights strongly indicated the responsibility of Member States under the European Convention on Human Rights for acts of international organizations.
On the topic of expulsion of aliens, he said account should be taken of the broader framework of the rights of aliens, which were mostly regulated by national legislation. Any codification work, therefore, required a thorough analysis of national legislation. He drew attention to his country's domestic legislation on the subject which had recently been substantially amended. For the Special Rapporteur to embark on the topic, he said, it would be advisable for him to compile first the various national legislations and draw general conclusions from them.
DON MACRAE (Canada), in addressing responsibility of international organizations, said two challenges in particular faced the Commission -- first that there was both an internal and external aspect to international organizations operating under international law, and the second was the wide variety of international organizations, different in their powers and legal status. It raised the question of whether the draft articles had to be adapted to different practices and processes of different international organizations. Referring to draft article 8 on rules of the organization, he questioned whether the issue could be set aside in that way, and said the article deserved further reflection.
As to the responsibility of an international organization in connection with the act of a State or of another international organization, he said it would be a challenge to find a "core" that was common to processes and practices, and to decide how to frame rules that would respond to the differences in international organizations. After referring to scenarios that dealt with the European Community and the World Trade Organization, he said the Commission should give further thought to whether the responsibility of the community could be clarified, given that implementation of community obligations was through the actions of its member States. He added that the issue concerning the extent of responsibility of States for the wrongful acts of international organizations had potentially far-reaching consequences. While he agreed that the Commission should look at related questions, Canada reserved its position as to whether those matters should be included in the draft articles until the ambit of any such potential State responsibility could be delineated more clearly.
EDWIGE BELLIARD ( France), addressing the topic of protection of diplomats, said the Commission should refrain from imposing a time frame to the readings of the draft articles; they would gain from being further discussed, particularly the questions related to compensation for damages that might arise. On unilateral acts of States, she said interesting approaches were emerging from the discussions within the working group on the subject. The Commission should consider limiting its examination to a treatment of unilateral acts of States and save the topic of unilateral behaviour for future study.
She expressed concern over the approach to the question of the effects of armed conflicts on treaties, as well as the approach being taken on the subject of fragmentation of international law. Concerning the latter, she said great restraint should be exercised in adopting the current document, as it could cause more doubt and confusion rather than resolving issues.
Turning to the responsibility of international organizations, she said she supported the approach which had been adopted. Article 8 on rules of organizations was a wise adaptation of the text adopted in 2001. Its paragraph 2 served as a useful explanation of paragraph 1. She was disconcerted that the Commission chose not to adopt clear cut provisions on the legal nature of rules of organizations.
From her point of view, she added, articles 13 and 14 did not present any difficulty but they did raise the issue of whether an obligatory decision by an international organization could be understood in the context of direction, control or coercion. Articles 13 and 14 on direction, control and coercion, need not refer to the question of the legal scope of the legal decisions adopted by international organizations. On article 15, related to decisions, recommendations and authorizations by international organizations to its members, she expressed concern about the conditions for invoking the responsibility of the international organizations. By not distinguishing that the wrongful acts must be actually committed, the Commission could give the unfortunate impression that responsibility could be incurred by a "virtual" act.
HOSSEIN PANAHIAZAR ( Iran) noted with satisfaction the significant progress made by the Commission on several topics it was currently considering and commended all its Special Rapporteurs and members for their hard work and their outstanding contributions to the Commission's tasks. He said his delegation welcomed the Commission's decision to include in its current programme of work the important topic of the obligation to extradite or prosecute. It was, however, concerned that budgetary constraints and cost-saving measures would adversely affect the Commission's function and productivity with such a heavy workload. He drew attention to the issue of timely submission of reports by the Special Rapporteurs which the Commission had observed, and said that missing the indicated timetable could have far-reaching consequences for the Commission's work.
He said Iran underlined the usefulness of the international law seminar organized during the Commission's sessions. Its representative said the seminars provided a unique opportunity for young lawyers and Government officials to advance their careers. It was his hope that that invaluable contribution of the Commission to the study and dissemination of international law would continue, taking into account the special needs of developing countries. On the subject of expulsion of aliens, he said that it was a sovereign right of States to do such. However, a State should exercise that right in accordance with established rules and principles of international law, particularly those of human rights. Expulsions should also be based on legitimate grounds, as defined in domestic law. He said Iran supported the idea of some Commission members that the status of aliens who had been resident in the territory of the expelling State for a long time, and had lost almost all of their interests to the original State or had acquired special interests in the expelling State, should be thoroughly examined.
On the issue of expulsion in occupied territories by the occupying Power, he said it was a matter which fell under the realm of international humanitarian law and was clearly beyond the mandate of the topic.
PARK HEE-KWON (Republic of Korea), addressing the responsibility of international organizations, said the questions of aid or assistance by a State in the commission of an internationally wrongful act, and also a provision on direction, control or coercion exercised by a State, should be included in the draft articles. He added that the question of whether a member State of an international organization that had committed a wrongful act should be held responsible was still controversial. The complexity was evident when the considerable diversity among international organizations, in their membership, structure and functions, was taken into account. If a unified legal solution were not developed, injured third parties were likely to go "forum shopping". He proposed such measures as informing potential injured third parties of the scope of responsibility of member States regarding specific acts of international organizations, and the establishment of an international fund to address unforeseen situations.
Turning to expulsion of aliens, he agreed that in this era of globalization barriers hindering the movements of persons seemed somewhat outdated and even contradictory to the spirit of the age. He said that in the preliminary stage he agreed with the approach by the Rapporteur that priority be given to understanding the concept, including the scope of the term "expulsion of aliens". The fundamental issue was the concept of expulsion versus non-admission, and the "legal limbo" status of those who had entered a territory without authorization. Expulsion should cover aliens who were physically in the territory of a State, whether lawfully or not. At some point in the future, the issue of non-admission should be examined by the Commission as well. He preferred the wider term of "aliens", since refugees and migrant workers were both then covered. If there was any sub-categorization needed, it was with regard to permanent residents.
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