3 November 2005
Reservations to Treaties Said to Be Useful Expression of Will in World of Growing Interdependence, but Still Diverse
Assembly's Legal Committee Continues Review of Law Commission Topics; Delegate Welcomes Addition of "Obligation to Prosecute or Extradite"
NEW YORK, 2 November (UN Headquarters) -- Today more than ever, the institution of "reservations to treaties" was proving to be an effective recourse in assuring the universality of international treaties in a world growing more interdependent, but still remaining diverse in its political thinking and its elaboration of legal doctrines, the speaker for Cuba said this morning as the Sixth Committee (Legal) continued its discussion of topics on the agenda of the International Law Commission.
Reservations were an expression of the will and political sovereignty of a State, he said. Determining the validity of reservations to treaties was the responsibility of States parties alone and should not be relegated to the depositary of the treaty.
The Sixth Committee was discussing the final chapters of the report of the International Law Commission, dealing with the effects of armed conflicts on treaties, diplomatic protection, and the fragmentation of international law.
As to new topics on the Commission's agenda, the speaker for Australia welcomed the inclusion of the subject "obligation to prosecute or extradite", saying the value of that principle had been highlighted in the Committee's recent work on the Convention on the Safety of United Nations Personnel and its work on a comprehensive convention on international terrorism.
Also speaking this morning on the Law Commission report were the representatives of Guatemala, Libya, Poland, Jordan, Greece, Romania, Slovakia and New Zealand.
In other business, Robert Tachie-Menson (Ghana), Chairman of the Advisory Committee on the Programme of Assistance, introduced the report of the Secretary-General on the Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law. He said the ever-growing importance of international law in today's world made it urgent to make concerted efforts to encourage the teaching and dissemination of international law in the developing world, where there was a lack of resources, but certainly not of talent.
He also introduced a draft resolution on the Programme of Assistance that would approve the guidelines and recommendations in the report. It requests the necessary resources for the Programme, as well as voluntary contributions from Member States and interested organizations and individuals.
Finally, the Committee approved, without a vote, a draft resolution authorizing Observer Status in the General Assembly for The Hague Conference on Private International Law.
Another draft, to approve Observer Status in the General Assembly for the Ibero-American Conference, was introduced by the representative of Spain. The representative of Costa Rica spoke in support.
The Committee will meet again tomorrow, Thursday, 4 November, at 9:30 a.m. to continue its discussion of the International Law Commission report.
The Sixth Committee (Legal) met this morning to continue its discussion of the final chapters of the report of the International Law Commission, namely the effects of armed conflicts on treaties, diplomatic protection, and the fragmentation of international law. (For further information see Press Release GA/L/3282 of 24 October)
The Committee was also expected to take action on two draft resolutions. The first would approve Observer Status in the General Assembly for the Hague Conference on Private International Law (document A/C.6/60/L.9); the second would approve Observer Status in the Assembly for the Ibero-American Conference (document A/C.6/60/L.10).
The Committee was also expected to receive the report of the Secretary-General on the Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law (document A/60/441). The report covers the implementation of the Programme during 2004 and 2005. It gives an account of the activities performed by the United Nations itself and of those in which the Organization has participated, as well as a description of contributions made by the United Nations Institute for Training and Research (UNITAR).
The report notes that the Assembly did not provide for new budgetary resources for the Programme but relied instead on existing appropriations and voluntary contributions from States. The report, therefore, recommends that the United Nations and other agencies continue the current activities and develop and expand them if new funds become available through voluntary contributions.
The details of the administrative and financial implications of the Programme are detailed as well in the report.
ROBERTO LAVALLE-VALDES ( Guatemala), addressing the topic "effects of armed conflicts on treaties" commented on its draft article 4 "The indicia of susceptibility to termination or suspension of treaties in case of an armed conflict". He said that if the treaty did not mention the intention of its parties, then reference had to be made to preparatory meetings and circumstances surrounding the conclusion of the treaty. If the treaty was not applicable during a conflict involving its parties, then it had to be ascertained whether an additional agreement had been concluded between them. He said the draft articles should be improved.
GEORGIA WOOLLETT ( Australia), on the same topic, agreed that the Law Commission should not attempt to embark on a comprehensive definition of armed conflict. She also agreed that there should be a simpler formulation, stating that the draft articles applied to armed conflicts whether or not there was a declaration of war. It would also be important to ensure that any criteria concerning termination or suspension of a treaty included in the draft articles, clearly conformed with the Vienna Convention on the Law of Treaties.
She welcomed the inclusion of the topic "obligation to prosecute or extradite" on the Commission's agenda. The value of that principle had been highlighted in the Committee's recent work on the Convention on the Safety of United Nations Personnel, and also its work on a comprehensive convention on international terrorism.
FETHALLAH ALJADEY ( Libya) addressed the topics "shared natural resources", "diplomatic protection", "expulsion of aliens" and "unilateral acts of States". He said international practice on the topic of shared natural resources was extremely limited, and he drew attention to the lack of universality of the 1997 United Nations Convention on the Transboundary Uses of Watercourses. On diplomatic protection, he said the draft articles did not make references to such important issues as who had the right to provide diplomatic protection, and what the effects of such protection were.
On the subject of expulsion of aliens, he said that there should be agreement on the definition of the term "expulsion". A stricter draft article would have to be adopted, with the reasons for expulsions being included. A State had a right to expel foreigners, but the reasons should be given. On unilateral acts of States, he said there were some pitfalls in its codification, notably in the nature of the subject itself. There should be agreement on the need for the study in the first place. The work on the topic should be preliminary.
He said unilateral acts were often taken by States for political purposes. It would be difficult for a single text to be adopted to cover all unilateral acts.
ANDRZEJ MAKAREWICZ (Poland) praised the work done on the topic of effects of armed conflict on treaties, but said he believed the draft articles were not yet ready to be transmitted to a drafting committee. Problems remained in such areas as the definition of "armed conflict"; a formula for the termination or suspension of a treaty; and the catalogue of treaties which continued in operation during an armed conflict. He also questioned whether it was necessary to have detailed provisions concerning the legality or illegality of armed conflict in connection with its effects on treaties.
He further questioned whether the scope of the draft articles should be limited only to the treaties concluded between the States, or if it should also cover treaties concluded with the participation of other subjects of international law, such as international intergovernmental organizations. The second alternative, while much more complicated and difficult, would be more ambitious and appropriate.
On the fragmentation of international law, he said the topic did not possess a codification nature but had more of a research character.
ALEJANDRO GARCIA ( Cuba), referring first to the topic of expulsion of aliens said the term should be used in its broadest sense in the study of the subject. The process of expulsion must respect established procedures in the national legislation of a country, as well as norms of international law meant to protect the rights of people who were subject to expulsion. It was wise to examine all the legal consequences within the ambit of the responsibilities of expelling States, and for harm suffered by the expelled persons as a result of irregularities or reasons contrary to the norms of international law. Any codification should take account of bilateral agreements.
He noted that some delegations had recommended the drafting of norms that would make it mandatory to return the expelled person to the country of its nationality, to avoid leaving the expelled person in a legal limbo. He suggested that the expelled persons might also be returned to the State from which they had entered the expelling State.
Turning to reservations to treaties, he said that today more than ever, the institution of reservations to treaties was proving to be an effective recourse in assuring the universality of international treaties in a world growing more interdependent, but still remaining diverse in its political thinking and its elaboration of legal doctrines. Reservations, he added, were an expression of the will and political sovereignty of a State. He supported the link to the Vienna Convention on the Law of Treaties. Determining the validity of reservations to treaties was the responsibility of States Parties alone, and should not be relegated to the depositary of the treaty.
On the issue of diplomatic protection, he said the adoption of a convention should be based on the principle of accepted norms and practices, and not be a part of the progressive development of new norms that did not have wide acceptance among States. Diplomatic protection must remain a right of the State and not an obligation of the State.
MAHMOUD HMOUD ( Jordan) said the challenge for work on "effects of armed conflicts on treaties" was for the International Law Commission to elaborate an instrument that best served the common interest of States in respect for the rule of law. Once that principle was established, the various doctrines on the issue would become useful, with all the relevant elements being considered, including: the nature and scope of the conflict, the content of the treaty rules affected by such a conflict and the intent of the parties to the relevant treaty.
Jordan agreed that the topic was distinct from the issue of legality of the use of force. If the rules of international law did not prohibit termination or suspension of a treaty, then the exercise of such a right should not be affected by the characterization of the use of force. He said that creating a relationship in the draft articles between the legality of the use of force and the right to suspend or terminate a treaty would lead to pronouncements on the authority of certain United Nations bodies to decide on the application of treaties. He went on to examine some of the draft articles, stating that, for instance, with regard to article 1, his delegation favoured the possible inclusion, in the scope of the draft text, treaties to which international organizations were parties. The application of treaties during wartime affected such organizations, he said.
MARIA TELALIAN (Greece), addressing the topic "effects of armed conflicts on treaties", said her country supported the general approach followed by the International Law Commission, namely to encourage the continuity of treaty obligations in time of armed conflicts, in cases where there was no genuine need for suspension or termination of treaties. Greece believed, however, that the effect of armed conflicts on treaties very much depended on the specific provisions of the treaty at hand, its nature and the particular circumstances surrounding its conclusion.
She said the draft articles should cover situations of military occupation (regardless of whether it was accompanied by protracted armed violence or armed operations), as well as territories placed under international administration. She noted that the draft articles did not specifically deal with the question of the application of human rights and environmental law treaties in time of armed conflict, and suggested that they should be considered.
On the topic of "reservations to treaties', she commented on the draft guidelines dealing with freedom to formulate reservations (3.1); reference to article 19 of the Vienna Convention on the Law of Treaties (3.1.1); specified reservations (3.1.2), and "definition" (3.1.5). She also dealt with a request by the International Commission for Governments to comment on the practice of a State objection to a reservation without opposing the entry into force of the treaty between itself and the reserving State.
She said lack of clarity in the relevant rules of the Vienna Convention on the Law of Treaties had led to divergent State practice. In the view of Greece, objections to incompatible reservations did not have the same legal effects as objections to reservations that had successfully passed the "object-and-purpose" test. She also said that reserving States always had the option either to withdraw or modify an incompatible reservation, or to withdraw from the treaty itself if such a reservation was an absolute condition for the consent of the State to be bound by the treaty.
CRISTINA MORARIU (Romania), addressing the effects of armed conflict on treaties, said her country particularly appreciated the approach of the Special Rapporteur to the topic, in stressing the importance of treaties in reinforcing the security of legal relations among countries, and adherence to the principle of treaties remaining in effect whenever possible during armed conflict. She said she supported maintaining the rule of automatic non-termination or suspension of a treaty when an armed conflict arose, as articulated in draft article 3. Additional criteria were needed in the elaboration of article 4 on susceptibility to termination or suspension of treaties that would allow flexibility in the analysis of the concrete effects of armed conflict on treaties.
She called for greater clarity in article 6 on treaties relating to the occasion for the resort to armed conflict. She agreed in principle with draft article 7, with its catalogue of treaties, as long as the list was purely indicative in nature. The contents of the list could end up being too broad or too narrow, but that would be would be offset by the indicative nature of the catalogue.
METOD SPACEK ( Slovakia), addressing the topic "effects of armed conflicts on treaties", said the definition of the scope of the draft articles on the subject seemed to her delegation to be most important, and should be considered with the utmost care. Internal conflicts should not be excluded. He said the Special Rapporteur's limitation of the scope exclusively to treaties among States seemed to be too narrow, and he suggested that the scope should also cover treaties involving international organizations as parties.
On diplomatic protection, he noted the remarkable progress that the International Law Commission had made on the topic, and expressed the hope that work on it would be concluded once the Commission received the responses of Governments on the questionnaire sent to them on some aspects of the subject. He also said the "clean hands" doctrine should not be included in the draft text, as the doctrine was applicable in direct interstate claims, although it had not been clearly confirmed nor rejected by international case law.
Addressing the topic "fragmentation of international law", he said his delegation recognized that its study would have a significant theoretical, as well as practical, effect. It would be widely used and applied by international law professionals, Governments and international organizations, as well as courts and tribunals.
SCOTT SHEERAN ( New Zealand) said diplomatic protection remained a useful tool which should not be abandoned, especially since there were few effective procedural remedies in international law available to individuals or corporations injured by a foreign State. He said the draft articles adopted by the International Law Commission, at first reading, were generally codification rather than progressive development. In their present form, he said the draft articles represented a sound product incorporating a reasonable mix of codification and sensible progressive development. The Commission should aim to conclude its work on the topic next year by adopting the draft articles at second reading, taking into account the comments of Governments.
On the topic of "fragmentation of international law", he said the results of the work on it should be of practical value to legal advisers. New Zealand strongly supported the Commission's plan for a two-part outcome on the subject, agreeing that a key part of the product should be a practical set of concise statements intended to help legal advisers deal with, and think through, fragmentation issues that they might encounter. It encouraged the Commission to complete discussion of the remaining studies early at its next session.
He said New Zealand had a long-standing interest on the topic "international liability in case of loss from transboundary harm, arising out of hazardous activities", although it was not on the Commission's agenda this year. It continued to believe that the risk of that harm was an issue that would grow in importance with the advent of new technologies. Prevention was certainly a key to the issue, but the question of who had to carry the loss could not be ignored. His delegation strongly urged the Commission to conclude its work on the topic next year, by adopting the draft principles on the subject at second reading.
Action on Draft Resolutions
The Sixth Committee approved, without a vote, the draft resolution authorizing Observer Status in the General Assembly for The Hague Conference on Private International Law (document A/C.6/60/L/9).
The representative of Spain introduced a draft resolution approving Observer Status in the General Assembly for the Ibero-American Conference (document A/C.6/60/L.10). The representative of Costa Rica spoke in support of the draft.
Report on Programme of Assistance
ROBERT TACHIE-MENSON ( Ghana), Chairman of the Advisory Committee on the Programme of Assistance, introducing the Secretary-General's report, said the Programme encompassed a variety of practical, "hands-on" activities that benefited both individuals and institutions in the developing and developed world. Fellowships were awarded allowing for the study of all aspects of international law, including the law of the sea. Regional courses on international law were encouraged and organized. A number of international trade law seminars and symposia were organized in developing countries.
Citing the ever-growing importance of international law in today's world, he said reality made it urgent that there be concerted efforts to encourage the teaching and dissemination of international law in the developing world, where there was a lack of resources, but certainly not of talent. "While a great deal is being done with a zero-growth budget", he said, "much more could be accomplished with greater contributions from Member States, and from institutions within those countries, to the Programme."
He also introduced a draft resolution on the Programme of Assistance (document A/C.6/60/L.5) that would approve the guidelines and recommendations in the report. It would also authorize specific fellowships during the 2006-2007 biennium. It requests the necessary resources for the Programme, as well as voluntary contributions from Member States and interested organizations and individuals.
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