28 October 2005
Legal Committee Seeks Assembly Adoption of Convention on Use of Electronic Communications in Trade Contracts
Second UNCITRAL Text Commends That Body for Progress in Several Areas; Debate Continues on International Law Commission Report
(Issued on 27 October 2005.)
NEW YORK, 26 October (UN Headquarters) -- The General Assembly would adopt the United Nations Convention on the Use of Electronic Communications in International Contracts by one of two draft resolutions on the United Nations Commission on International Trade Law (UNCITRAL), approved by the Sixth Committee (Legal) without a vote this afternoon.
The Committee this morning concluded its discussion of the "responsibility of international organizations" and the "expulsion of aliens", as contained in the report of the International Law Commission, and took up several other Law Commission topics at its afternoon meeting.
The draft instrument on electronic communications, which is attached to the related draft resolution, has 25 articles intended to remove obstacles to the use of electronic communication in international contracting, including those that might arise under existing international trade law regimes. It complements and builds upon earlier instruments prepared by the Commission, including the UNCITRAL Model Law on Electronic Commerce and the UNCITRAL Model Law on Electronic Signatures.
The new instrument deals, among other things, with the determination of a party's location in an electronic environment; the time and place of dispatch and receipt of electronic communication; and the use of automated message systems for contract formation. Other provisions contain criteria establishing functional equivalence between electronic communications and paper documents -- including "original" paper documents -- as well as between electronic authentication methods and handwritten signatures.
The other draft resolution commends UNCITRAL for the progress made on several topics, including the revision of its Model Law on Procurement of Goods, Construction and Services; model legislative provisions on interim measures in international commercial arbitration; a draft instrument on transport law, and a draft legislative guide on secured transactions. The draft endorses the efforts and initiatives of UNCITRAL, as the core legal body within the United Nations system in the field of international trade, to increase coordination and cooperation among bodies engaged in international trade law. The Assembly would also reaffirm the importance of UNCITRAL's technical assistance programmes in international trade law reform and development.
On other matters, at the request of the General Assembly, the Committee added to its agenda the question of Observer Status for the Hague Conference on Private International Law, on which the Committee is expected to act on Monday, 31 October.
The Chairman of the International Law Commission, Djamchid Momtaz (Iran), this morning introduced the remaining chapters of the Commission's report: Shared Natural Resources; Unilateral Acts of States; and, Reservations to Treaties.
Also speaking in the morning debate were the representatives of Mexico, Hungary, Jordan, Denmark (on behalf of the Nordic countries), Sweden (on behalf of the Nordic countries), Greece, Germany, Switzerland, Spain, Poland, El Salvador, Argentina.
Speaking this afternoon were the representatives of United Kingdom, Norway (for the Nordic Countries), Austria, Sweden, Netherlands, Malaysia, Australia, New Zealand, Japan, Guatemala, Ukraine and France.
The Special Rapporteur on reservations to treaties made a statement.
The Representative of France spoke in explanation of position on the UNCITRAL text on electronic communications (A/C.6/60/L.8).
The Committee will meet again on Friday, 28 October, at 10 a.m., to continue its discussion of the report of the International Law Commission.
The Sixth Committee (Legal) met today to continue its debate on topics considered by the International Law Commission at its two-part fifty-seventh session (2 May-3 June, and 11 July-5 August, Geneva), focusing on "Shared natural resources", "Unilateral acts of States", and "Reservations to treaties". It was first expected to conclude consideration of the topics, "responsibility of international organizations" and "expulsion of aliens". (For further information, see Press Release GA/L/3282 of 24 October.)
JOEL HERNANDEZ (Mexico), first addressing the topic of expulsion of aliens, said the Special Rapporteur's report had set out the proper basis for an examination of the issue and a study of the customary norms and domestic laws and State practice. Those were inextricably linked to the protection of human rights. He agreed it was important to examine the legal aspects of the expulsion of aliens. All aspects of the topic should be addressed in order to fill existing gaps. Although principles existed for the right to expel aliens whose presence was considered undesirable for national security reasons, the expelling State was still obligated to observe its obligations to fundamental human rights. A more detailed study of the interests to be protected was needed. A comparative analysis would have to be carried out once the term "expulsion" was defined.
He said international law already had rules that applied to repatriation of those who were victims of illicit trafficking and those expelled during armed conflict, as well as the repatriation of refugees. Those with no national documents should also be included. Conventional laws already contained rules upon which it would be possible to build. While States may have the right to expel, they could not abuse that right.
He said he did not agree that the topic should not cover the removal of persons who were not lawfully in a State's territory; the Commission, in its work, must take account of modern-day realities faced by international migrants. The power of a State to expel had limits that were established in international law, as in the case of mass expulsions. With respect to the legal consequences related to expulsion, it was important to address those issues, as long as they did not duplicate the work of other topics studied by the Commission.
ISTVAN HORVATH ( Hungary) commended the International Law Commission for the progress it had made and encouraged it to make a greater concentrated effort to finish those topics which were close to completion at its forthcoming session. He said the Special Rapporteur on responsibility of organizations had presented a thorough and analytical report, and commented specifically on articles 8 and 15. He said he was concerned that the inclusion of paragraph 2 in article 8 might generate at least as many questions as it intended to solve.
He believed that article 15 required further refinements. The article should be unequivocal about the circumstances it intends to regulate concerning the circumvention of an international obligation. The responsibility of States for an internationally wrongful act of an international organization should be addressed with particular care. The draft articles on State responsibility could only serve as a starting point for the consideration.
MAHMOUD HMOUD ( Jordan), speaking on the responsibility of international organizations, said the draft articles provisionally adopted by the Commission generally corresponded to the relevant articles on the responsibility of States for internationally wrongful acts. He said there was limited international practice or judicial decision-making to guide States on the propriety of the approach adopted by the Commission. However, there was no reason, he said, for the Commission not to continue on that methodology, to the extent that the rules reacted to a situation involving the "judicial personality" of the international organization and its independent legal capacity. Yet, the issue became more complicated when the rules involved the special character of the international organization and its relationship with member States or other international organization. He said the same could be said about the organization's relationship with third States or organizations giving rise to the breach of the international obligation. He said the Commission should explore further the possibility of distinction between third States and international organizations which committed the breach and the situation of a breach by a member State or a member international organization.
He said the draft articles should give general guidance on the determination of the existence of a breach, otherwise a gap would exist in relation to their application.
On the topic of expulsion of aliens, he said his delegation welcomed its inclusion in the Commission's work programme. Jordan recognized that expulsion was a right of a State, and that it should be within the confines of international law. The right was limited and not absolute. In examining the principle of legality of expulsions, he said attention should be paid to national laws and procedures of the expelling State. The study being carried out by the Commission's Special Rapporteur should examine that issue. The scope should include the issue of whether the measure (expulsion) was lawful under the national law of the State and whether access to the national judicial system was available to the person being expelled. His delegation was of the view that the approach to the topic should be the preparation of draft articles covering specific aspects of expulsion
PETER TAKSOE-JENSEN (Denmark), speaking also for the other Nordic countries (Finland, Iceland, Norway, Sweden) on the topic of responsibility of international organizations, said the descriptions in the Special Rapporteur's report on the subject provided a helpful overview of the complex issue. It set the practical framework for the Commission's work, and the Nordic countries shared the hope that further examples of practice and case law would be provided by States and organizations. The Nordic countries were broadly in agreement with draft articles 8 to 16, provisionally adopted by the Commission at its fifty-seventh session. They supported the continued reliance on, and close reflection of, the provisions on State responsibility in the elaboration of rules on responsibility of international organizations.
The Nordic countries were not convinced, he said, that potential responsibility of the organization was appropriate in all cases where the act of a member State could somehow be traced back to a recommendation or authorization of that organization. It would, therefore, be necessary for the draft articles to be further refined on that particular point. Draft rules on those particular issues would need to carefully reflect a realistic, pragmatic and comprehensive perception of international relations and the interaction of States and international organizations today, the Nordic countries said.
CARL HENRIK EHRENKRONA ( Sweden), speaking for the Nordic countries, described the Special Rapporteur's report as an excellent introduction to the topic of expulsion of aliens. While the right of a State to expel was inherent in the sovereignty of States, the right must be exercised in accordance with international law. Every individual's situation must be taken into account before a decision to expel was taken. Collective expulsion was not acceptable from the view of international law. The balance between the right of States to expel aliens and other international legal norms must also take account of current challenges to the international order. Expulsions of aliens might be warranted as legitimate counter-terrorism measures, but only when undertaken in conformity with international legal norms.
The Nordic countries were not convinced of the suitability of closer scrutiny of migration laws and policies. The topic should not include the non-admission of aliens, and it should exclude the case of aliens who had not physically crossed the border of a State. The same should apply to aliens present on a boat which had not entered the territorial waters of a State. As to how the Commission's work might relate to existing treaties in the field, he said the Commission could choose between a set of principles that covered all rules concerning the topic, or a set of draft articles codifying customary law that was applied in any gaps there might be in existing treaty law.
PHANI DASCALOPOULOU-LIVADA ( Greece) said the importance of the topic of responsibility of organizations could not be overestimated, given the proliferation of international organizations. Among her comments on article 8, she said that, while Greece agreed with the approach followed by the text, she believed it would be worthwhile to explore greater precision as to what constituted an international obligation. Turning to article 15, on decisions, recommendations and authorizations addressed to member States and international organizations, she said a lacuna existed in connection with the question, and she elaborated on the issue.
She said article 5 might be useful in practice in the case of the international administration of a territory where an international organization exercised governmental authority under international law. In such cases, it was obvious that the conduct and consequent responsibility of a State organ placed at the disposal of such an organization would be attributed to that organization.
THOMAS LAUFER ( Germany) said his delegation fully shared the points made yesterday by both the representative of the United Kingdom, on behalf of the European Union, and by the representative of the European Commission. The issue of the responsibility of international organizations was complicated by the functional, structural and conceptual diversity of those organizations. The Special Rapporteur on the topic had so far successfully balanced the similarities of, and differences between, the responsibility of international organizations and responsibility of States under international law. Germany was happy to have assisted the Commission last March, through the submission of a report following a request for information by the Commission on member States' practice relevant to the topic of responsibility of international organizations.
He said Germany agreed in principle that a paragraph should be included in the draft articles dealing with the breach of an obligation under the rules of an organization, as most obligations of an international organization found their origin in internal rules. Further clarification would, however, be necessary regarding the status of such organizational rules. Germany agreed in principle with the underlying rationale of draft article 15 (1) --- namely, that the fact that an international organization was a subject of international law, which was distinct from the organization's members, opened up the possibility for the organization to try to influence its members in order to achieve a result that it could not lawfully obtain directly. Conversely, he said, international organizations should not be held responsible for acts which their member States decided to take on their own will. Both aspects needed further examination.
On the subject of expulsion of aliens, he said his country supported the analysis of the key issue underlying the topic -- reconciliation of the right to expel with the requirements of international law, particularly those relating to the protection of fundamental human rights. The right of a State to expel should be balanced with existing human rights standards. To successfully promote the progressive development of international law and its codification in that field, he said a clear definition of the two component terms, "expulsion" and "alien", and the scope of the topic were essential. There should also be an examination of existing customary international law and treaty law, including a comparative study of international case law, as well as national laws and practice.
PAUL SEGER ( Switzerland) focused on two topics -- the responsibility of international organizations and the expulsion of aliens. He said the first topic was of great interest to his country which was host to many international organizations. He said a definition of what was an international organization was relevant in the elaboration of the draft articles, noting that there were intergovernmental international organizations and others which were private in nature. He noted that many of those private international organizations were springing up in large numbers and the question of responsibility of those organizations was vital.
He recommended that there should be a distinction between rules between parties in an international organization, on one hand, and the administrative rules constituting internal rules of that organization, on the other.
He congratulated the International Law Commission for including the topic of expulsion of aliens in its work programme. While the expulsion of an alien by a State was a sovereign right, it was not a limitless one. States had obligations. He said elaboration of future articles should include provisions indicating whether States should be obligated to receive those expelled. The question of conditions for expulsions should be given special attention in the Commission's work.
CONCEPCION ESCOBAR HERNANDEZ (Spain), first addressing the topic of responsibility of international organizations, said she agreed in principle with the approach of the work of the Special Rapporteur which closely followed the previous work done on State responsibility. However, she suggested it would be necessary to think further, given the great diversity in international organizations. Referring to article 8, paragraph 2, she described it as an innovation, in comparison to the parallel article in State responsibility, but added that it still needed further refinement. The paragraph appeared to limit the possibilities of internationally wrongful acts and it posed difficulty in terms of interpretation that could give rise to confusion. She agreed with the term "circumvent" rather than "breach" in article 15, but said it was necessary to think further about the assumptions in paragraph 2.
She welcomed the inclusion of the topic of expulsion of aliens, saying it was a due recognition of the importance of the phenomenon of international migration. The legal regime concerning the expulsion of aliens deserved treatment. Any work on the topic must take into account norms relating to personal jurisdiction, as well as the jurisdiction of the State. The Commission must also define scope of application of its work, for example, by defining the various categories of aliens and if all or only some needed to be taken into account under expulsion. It was also essential for the respect of fundamental human rights to be built into the study of the issue. It was premature to make any announcement of the form that a study of the issue should take.
REMIGIUSZ HENCZEL ( Poland) said that at least three topics on the Commission's agenda should be finalized at its next session: diplomatic protection; international liability for injurious consequences arising out of acts not prohibited by international law; and fragmentation of international law. He welcomed the inclusion of the topic "obligation to prosecute or extradite", citing its timeliness in terms of international crime, including terrorism. An analysis of the obligation should be done together with the principle of universal jurisdiction in criminal matters.
He noted that the work of the Commission this year on responsibility of international organizations had concentrated on two issues: breach of an international obligation on the part of the international organization; and responsibility of international organizations in connection with the act of a State or another organization. He commended the Commission on its scholarly work on the subject and said his country was in general agreement with the approach. However, he added, the mutual relations between articles 13 and 15, in particular the notion of coercion, were unclear and required further clarification, preferably in the commentary by the Commission. He also believed caution should be exercised in the references to international responsibility of the European Community/Union. When the work of the Commission was completed on the draft articles, the problem of responsibility of States for acts of international organizations must be reconsidered in light of the remaining codification.
Turning to the topic of expulsion of aliens, he pointed out that it often served as useful tool for States, for retaliation in their mutual relations. Another specific form of "retortion" in connection with expulsion concerned those with diplomatic status. The structure of the Special Rapporteur's report was logical and transparent. Poland believed that the Commission should separate the expulsion of aliens from other related concepts. Also, more stress needed to be placed on the human rights aspect of the expulsion of aliens. It was also necessary to remember that, even in times of extreme situations connected with the fight against terrorism, there were already special international regulations mitigating States in their tendencies towards overusing the institution of expulsion of aliens.
ELIZABETH VILLALTA VIZCARRA ( El Salvador) said the topic on responsibility of international organizations was complex and required meticulous analysis. She believed that in the development of the topic, precise limitation should be set on the responsibility of international organizations and that of States. The term "international organizations" should be defined.
On the topic of expulsion of aliens, she said that national legislations, as well as existing international law, should be taken into account in the Commission's study. In addition, she said, international practice and jurisprudence should be considered. She commended the Commission for taking up the topic and encouraged it to continue with its progressive development and codification.
Introduction of New Chapters
DJAMCHID MOMTAZ (Iran), Chairman of the International Law Commission, introduced new subjects in the Commission's report covering the topics "Shared natural resources" (Chapter IV); "Unilateral acts of States" (Chapter IX); and "Reservations to treaties" (Chapter X).
He said the topic "Shared natural resources", which was included in the Commission's programme of work in 2002, focused initially on transboundary groundwaters. At its 2005 session, the Commission received the third report of its Special Rapporteur on the topic, Chusei Yamada, containing a complete set of 25 draft articles on the law of transboundary aquifers. He highlighted some aspects of the draft articles, which were modelled on the 1997 Convention on the Law on the Non-Navigational Uses of International Watercourses. The draft articles sought to regulate three different categories of activities, namely utilization; other activities not necessarily connected with aquifer or aquifer system but which might have an impact on it; and measures of protection, preservation and management of such aquifer or aquifer system.
The draft articles were also based on two key provisions found also in the 1997 Convention -- the principles of equitable and reasonable utilization and, on the other hand, the obligation not to cause significant harm. They recognized the importance of bilateral and regional arrangements entered into by States concerned with respect to specific aquifers. The draft articles stressed the importance of cooperation in the management of aquifers and aquifer systems.
He said a number of issues were raised during the debate in the Commission on the topic, including how prominent should be the reference to General Assembly resolution 1803 (XVII) on permanent sovereignty of States over natural resources; how much reliance should be placed on the 1997 Convention in the elaboration of the topic; and the extent to which the draft articles should relate to bilateral and regional approaches.
Other important issues discussed included the relationship of the draft articles and general international law, and the need to keep in view the relationship between the current sub-topic on groundwaters and the related sub-topics in respect to oil and gas. A working group on transboundary groundwaters, set up by the Commission, had reviewed the draft articles, revising eight of them. The working group would be reconvened early next year to complete its task.
On the subject of "Unilateral acts of States", the Commission Chairman said work on it began in 1996. At the Commission's recent session, it had before it the eighth report of its Special Rapporteur on the topic. A working group set up in 2004 had discussed several examples of State practice of unilateral acts in accordance with the criteria established by the group. The first part of the Special Rapporteur's report had presented detailed examples of 11 types of unilateral acts of various kinds. He said the examples constituted a fairly broad and representative sample of unilateral acts.
The second part of the Special Rapporteur's report dealt with conclusions drawn from cases that had been studied. The debate in the Commission on the report was rich and constructive, he said. Several Commission members expressed satisfaction over the examples analysed, with some stating that the existence of unilateral acts which produced legal effects and created specific commitments was now beyond dispute. That could be corroborated by international jurisprudence.
The Commission reconstituted the working group to study the outcome of the debate in the Commission, and to submit a report for further discussion at the Commission's fifty-eighth session. He said the Commission would welcome comments from Governments on the topic.
On the topic of "Reservations to treaties", the Commission adopted two texts about the definition of objections to reservations and objections to treaties, and about the definition of objections to the late formulation or widening of the scope of a reservation.
EUGENIO CURIA (Argentina), speaking on shared natural resources and the issue of transboundary aquifers and aquifer systems, noted the interest of the Special Rapporteur in the analysis of existing aquifer systems in the world, and especially the Guaraní aquifer system under the jurisdiction of Argentina, Brazil, Paraguay and Uruguay, the member States of the Southern Common Market (MERCOSUR). The principles of international law applicable on the subject must be formulated as normative propositions. The management and utilization of transboundary aquifer systems were the exclusive matter of the States where they were located, and in no circumstances should there be internationalizing or universalizing of those systems. As to the framework of the draft, priority should be given to the protection, preservation and management of aquifer systems on behalf of the States where they were located, taking into consideration the vulnerability of that type of resource. Vital human necessities were also a priority to be satisfied. He made specific suggestions on draft articles.
He said he was satisfied by the guide to reservations to treaties and said it would be useful to spell out the concept of reservations, and the procedure to be followed in formulating those reservations. He made specific remarks on the legal effects of interpretative declarations and some of the undesirable effects that could be entailed. On the sensitive aspect of using the aim and purpose of the treaty for determining the validity of a reservation, he said the approach being taken was useful and he agreed that further study be undertaken.
The reports and discussion by the Commission revealed the difficulties with the subject of "Unilateral acts of States". Unilateral acts per se were an autonomous source of law, be it international custom or treaty. He agreed that the important point was to determine whether the act had created or modified rights on the international level. He made several suggestions about the study of the legal effects of the acts. Among them were that unilateral acts need not be explicit conduct, nor need they be a single act or omission, but rather could be a set of acts or omissions. They could also be written or not. He also said that unilateral acts could not create an obligation for a third State.
When the Sixth Committee meet again this afternoon, MICHAEL WOOD ( United Kingdom) said the issue of reservations to treaties merited careful study and debate before definitive conclusions were made. Commenting on practical aspects of the process of objecting to reservations, he said a major problem for many States was the paucity of resources and organization, within foreign ministries, for considering and reacting to the manifold reservations formulated by others. There might also be a policy or a political reason for not reacting to a reservation. He suggested developing further best practice in the field.
In certain European institutions, he said, it was found helpful to undertake a collective consideration of reservations. He responded in detail to the Commission's specific question on the practice whereby States often objected to a reservation they considered incompatible with the object and purpose of a treaty, but without opposing the entry into force of the treaty between themselves and the author of the reservation. He said he did not believe the United Kingdom approach differed significantly from that of the Special Rapporteur.
On other aspects of the debate, he agreed that the Commission was right in its cautious approach to the matter of defining the concept of "object and purpose" of a treaty. He expressed scepticism about the value of seeking to clarify the concept in the abstract. He also expressed doubt about the attempt to define "specified reservations". He also commented on several terminological issues in the guidelines. Any suggestion that special rules on reservations might apply to treaties in different fields, such as human rights, would not be helpful.
OYVIND HERNES ( Norway), speaking for the Nordic countries, welcomed the priority given to the law of transboundary aquifer systems. Whether adopted as a convention or a non-binding instrument, the articles on the law of transboundary aquifers would not remove the need for concrete bilateral and regional arrangements, as a supplementary regulatory framework to resolve outstanding issues. He was pleased that the complete set of draft articles took into account the need for protection and preservation of ecosystems within a transboundary aquifer or aquifer system, as well as containing an obligation of prevention reduction and control of the pollution of such aquifers.
He said the term "shared resources" in the context of the transboundary character of aquifers could be misleading. He supported a renaming of the subject matter in order to focus on the transboundary character of aquifers.
FERDINAND TRAUTTMANSDORFF ( Austria), speaking on unilateral acts of States, said the approach taken by the Special Rapporteur might be conducive to the eventual development of useful rules on the subject. It seemed the right approach for the Commission, at this stage, was to continue to review existing State practice and to work on a framework and possible principles identifying unilateral acts as sources of international law, and governing the legal effects of those acts.
He gave an example of a unilateral act by Austria in 1955 by which it adopted a constitutional law in which it declared itself permanently neutral. It notified all States with which it had diplomatic relations at the time of the action it had taken. Some States explicitly recognized the neutrality, others did not object to it, he said. Austria's commitment to maintain its permanent neutrality, therefore, resulted from a unilateral act based on national legislation and was valid as long as, and to the extent that, the legislation was in force. There was little established international practice to formally terminate that status. A second example given by the representative of Austria related to negative security guarantees, such as the one made in 1978 by the foreign ministers of the nuclear Powers. He said his delegation could not agree with the Special Rapporteur's view that "the intent of the State to commit itself was an important feature of the identification of unilateral acts" as sources. It awaited the forthcoming conclusions drawn from the practice elaborated so far.
On reservations to treaties, he said that to avoid confusion, it would be better for different kinds of objections adopted by the Commission to be distinguished. He proposed that the "objection" to the admissibility of reservations under article 19 should rather be called "rejection". He raised four points with regard to other guidelines proposed in the Special Rapporteur's tenth report. The first was the fundamental issue of the definition of object and purpose, and his delegation welcomed the introduction of criteria to determine that.
On the topic "shared natural resources", his delegation highly commended the work of the Special Rapporteur on the topic and the set of draft articles he had presented. Austria continued to strongly support the project and would like to refer to its written statement containing detailed comments on the draft articles. In view of the nature of groundwater resources and their vulnerability, his delegation believed that the well established precautionary principle ought to be included in the draft articles. It confirmed its view that the question of their legal form should only be discussed once the content of the draft articles had become more precise. The main goal of the draft articles was to provide a framework for the elaboration of legally binding agreements between States that shared groundwater resources.
Mr. EHRENKRONA ( Sweden), speaking also for the other Nordic countries ( Denmark, Finland, Iceland, Norway), said the general principle that the formulation of reservations was permitted was fundamental for the entire reservations regime. They agreed that article 19 of the Vienna Convention on the Law of Treaties established the presumption of freedom to formulate reservations. With regard to objecting to reservations incompatible with the object and purpose of a treaty, a growing number of countries, including Sweden, were developing a practice that severed the reservation in question from the treaty relation. The basis for that practice was the clear statement of the Vienna Convention article 19 (c). Severing reservations that were incompatible with the object and purpose was, in their view, a reasonable way of dealing with such reservations, if the compatible criterion was to have any real relevance.
He underlined the importance, should a definition be elaborated, of not narrowing the scope, definition, reach or importance of the compatibility criterion as it stood in practice today, nor of the severability doctrine. The Nordic countries strongly emphasized the importance of reflecting the developing State practice in the area of incompatible reservations in the Commission's work. That was fundamental, he said, if a future guide to practice was to be widely used and accepted by States.
JOHAN LAMMERS ( Netherlands) said the issue of shared natural resources was of particular significance to his country, since there were many natural resources which shared with other States or areas beyond the limits of national jurisdiction. As to the limited scope of the proposed rules, he said only aquifers were covered, and he anticipated that work on other shared natural resources would follow once the work on aquifers was completed. On the final form of the rules, he said, in view of the potentially limited number of interested States, it might not be productive to work towards a draft convention. It might also be necessary to rethink the framework approach in light of the status of the 1997 Convention on the Law of Non-Navigational Uses of International Watercourses. He then made specific comments on articles 7 and 14.
Turning to reservations to treaties, he said objection to a reservation that was contrary to the object and purpose of a treaty would seem to be a moral, if not legal, obligation for States parties. It was important for States parties to develop a consistent practice of making such objections, which needed to be considered in light of contemporary treaty practice. It must be recognized that today's treaties, and in particular human rights treaties, contained a multitude of substantive rules. There were cases where very broad, extremely general, imprecise and vague reservations had been made. Yet objecting States still chose to establish treaty relations. He then cited a number of explanatory reasons for that practice. He suggested that the changed perception of objections as a tool in treaty relations was an important clarification.
As to the Law Commission having met human rights treaty bodies to discuss reservations, he noted that it had not included the Committee on the Elimination of Discrimination against Women. He expressed the hope that it would be fully included in the future. He added that the "object and purpose" must be understood as one notion rather than two distinct criteria.
DATUK WAN JUNAIDI TUANKU JAAFAR (Malaysia), referring to article 2 of the text on shared natural resources on the law of transboundary aquifers, supported a definition of aquifer (or aquifer system) that recognized that aquifers could consist not only of rock formations but also sand, gravel and soil. He proposed that the term "harmonized" be deleted from article 10, saying it may impose too high an obligation upon aquifer States to establish standards and methodologies for monitoring transboundary aquifer or aquifer systems that were applicable across the board. He supported the use of the word "encouraged" in article 14 in relation to the taking of a precautionary approach by aquifer States in respect to pollution. He recommended that the protection under article 21 be extended to industrial secrets and intellectual property.
GEORGIA WOOLLETT ( Australia) said that her country expected that a State making a reservation would do so only in good faith, and would not attempt to frustrate its own stated purpose of entering into the treaty. Where a State made a reservation in good faith upon becoming party to a treaty, and that reservation was objected to by another State, Australia expected that the provision to which the reservation was related to would not apply between the reserving State and the objecting State. She said there might also be instances where the objecting State objected to the treaty as a whole, and not just the provision to which the reservation related. But Australia recognized, she said, that there might be good reasons why the objecting State would not go down that route, and might instead prefer some elements, at least, of the treaty in question to apply, between itself and the reserving State. She said it was difficult to identify all possible situations in which that might be the case.
She said the Vienna Convention on the Law of Treaties did address those issues. In particular, articles 20 and 21 canvassed the effect of an objection to a reservation upon the treaty in question entering into force between the reserving and objecting States. She said it was possible that those articles were not intended to apply to reservations prohibited by article 19.
SCOTT SHEERAN ( New Zealand), speaking on "shared natural resources", said that given the critical importance of aquifers for the future, it might be appropriate to acknowledge a wider international dimension by the inclusion of some very general duties applicable to all States. He said that would provide a useful context for the specific obligations on transboundary aquifer States and the obligations on other relevant States, such as those located in recharge or discharge zones of a transboundary aquifer.
On "unilateral acts of States", he said case studies in the Special Rapporteur's report were very useful. They illustrated the essential point of the topic, which was that unilateral actions of States could produce legal effects and, in relatively unusual circumstances, might result in a State being bound by its actions even though that might not have been its intent. He encouraged the Commission to conclude its work on the topic by drawing some reasonably broad conclusions from the case studies it had been considering.
On "reservations to treaties", he said his delegation saw no particular difficulties in the guidelines adopted by the Commission during the last session.
KOICHI HASEGAWA ( Japan) said it was appropriate for the Commission to have chosen "transboundary groundwaters" as the first subject of its study on the topic of shared natural resources. The shortage of groundwater resources, as a result of overexploitation and pollution, was now one of the clear and imminent environmental threats. The Commission should avoid being overly ambitious by trying to incorporate premature rules and instruments into a text. He expressed concern that the incorporation of provisions on the precautionary principle or the duties of non-aquifer States might result in long years of unnecessary debate; he suggested that to hasten its pace, the Commission address the issue in a realistic manner. He supported the proposal by the Special Rapporteur on differentiating the treatment between recharging and non-recharging aquifers. If a reference to "compensation" were to be made in the instrument, it should be kept in a non-obligatory form. He also agreed that it was more appropriate at this stage to concentrate on the substance of the topic rather than the final form of an instrument.
On unilateral acts of States, he noted that the topic had been under consideration for nine years and that some members of the Commission had expressed their doubts as to the appropriateness of the topic for codification. He believed that the elaboration of a legal regime on the subject would contribute to the legal effect of certain unilateral acts and thereby enhance certainty and stability in international relations.
Turning to reservations to treaties, he noted that the topic had been under consideration for 10 years and said it would be appreciated if a whole set of guidelines could be presented in the near future. He then made specific comments on terms used in the guidelines, as well as on points raised by the Commission.
ROBERTO LAVALLE-VALDÉS (Guatemala), addressing reservations to treaties, referred to article 2.6.1 and said that if an objection to a reservation was not stipulated, as provided for by the Vienna Convention on Treaties, between an objecting State and a reserving State, then the objection had no legal effect restricting the scope of the reservation. Such silence could be tantamount to accepting the reservation. Guatemala believed it was not appropriate to include a definition of the objection in the guidelines. He also expressed doubts about the status of declarations in the context of reservations. He suggested additional wording for article 3.1.1. He also made observations concerning paragraph 390.
As to the effects of reservations to treaties, he said those reservations that were incompatible with the object and purpose of the treaty were of serious concern, not least because they could give rise to disputes between States. It could be helpful in that regard to adopt the suggestion by the Nordic countries for severing reservations that were incompatible with the object and purpose of a treaty. He then commented on paragraph 371, as well as article 3.1.2. He agreed with the last statement in paragraph 404, as well as the contents of paragraph 416. There seemed to be a tendency to consider a final instrument that went beyond mere guidelines. If the guidelines were adopted by the General Assembly, the international community could find itself in the area of interpretive law, which could be a useful progressive development of international law.
OKSANA PASHENIUK ( Ukraine), addressing the topic "reservations to treaties", said her delegation hoped that the codifying exercise the Commission was engaged in would lead to the adoption of a set of provisions to regulate that important area of international law. She stressed that alternative reservations and the modification to reservations or late reservations to treaties made after signing, ratifying, accepting, approving or acceding to a treaty, should not be considered as reservation in the light of articles 19-23 of the 1969 Vienna Convention on the Law of Treaties. Speaking about the extension of the 90-day period for objections to late reservations, or modification to reservations to 12 months, she said her delegation was of the opinion that such practice should be compatible with relative subparagraphs 1(c) and 1 (e) of articles 77 and 78 of the 1969 Vienna Convention.
EDWIGE BELLIARD ( France) confined herself to certain guidelines drafted by the Special Rapporteur concerning validity to reservations. She said her delegation took note of the validity of reservations but reaffirmed her country's preferred term of opposition to reservations. After agreeing to the proposals of the Special Rapporteur, she said the provisions of article 19 of the Vienna Convention on the Law of Treaties could be applied, without substantial changes, to the provisions of the guidelines 3.1 of the texts prepared by the Special Rapporteur. She also commented on guidelines 3.1.5 and 3.1.6 concerning definition of the object and purpose of the treaty; and determination of the object and purpose of the treaty, respectively. Her delegation agreed to the definitions proposed by the Special Rapporteur.
Response from Special Rapporteur
The Special Rapporteur on reservations to treaties, ALAIN PELLET, stressed how important a dialogue with Sixth Committee members was to his work and that of the other Special Rapporteurs. He said he appreciated the relatively new practice of being able to react immediately to speakers' comments. However, what was ideally meant to be an interactive dialogue more often seemed to be a monologue on each side. He underscored the value of the information received from delegations concerning their detailed suggestions, as well as the articulation of individual positions of States. He could not promise that a first reading would be completed by next year, given the complexity of the subject.
The Sixth Committee should give the International Law Commission and its Special Rapporteurs precise guidance as to policy questions. He also asked for explicit support in a draft resolution for the proposal to hold a seminar next year with the human rights bodies. He explained that in its previous meeting with those bodies, the Commission had not managed to meet the Committee on the Elimination of Discrimination against Women because of time constraints, and budgetary reasons had prevented a meeting with any representatives from that body.
He then made specific responses on substantive matters to points raised by speakers during the debate, which, he said, would help inform the future work on the subject.
Action on Two Draft Texts
The Committee then approved the draft text, A/C.6/60/L.7 "Report of the United Nations Commission on International Trade Law on the work of its thirty-eighth session" without a vote.
It went on to also approve, without a vote, the draft text A/C.6/60/L.8 on "United Nations Convention on the Use of Electronic Communications in International Commerce". The Chairman said that, upon its adoption, the Convention would be opened for signature at United Nations Headquarters from 18 January 2005 until 16 January 2008.
Explaining her delegation's position after action on the two draft texts, the representative of France regretted that the fundamental notion of security in electronic commerce had not been taken into account in the new instrument, where it was particularly needed. Too much flexibility had been provided to the parties who were not obliged to indicate where they were operating from. The Convention had also established an absolute principle by which parties could have a choice whether or not to implement the provisions.
Finally, she said, the definition of the scope of the instrument was too extensive and did not seem relevant. In fact, she said the draft convention did not require, for its implementation, that the parties should reside in the State. Consequently, the draft convention established obligations upon States which were not parties to it. That constituted a precedent which France did not wish created in international law. Her delegation wished to see its statement reflected in the official records of the Committee's meeting.
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