LEGAL COMMITTEE, CONTINUING WORK ON LAW COMMISSION
REPORT, CONSIDERS SHARED NATURAL RESOURCES,
FRAGMENTATION OF INTERNATIONAL LAW
Draft Texts Presented on Measures against Terrorism, Legal
Protection of UN and Related Personnel, Jurisdictional Immunities of States
NEW YORK, 3 November (UN Headquarters) -- The Sixth Committee (Legal) this morning continued its consideration of the report of the International Law Commission by concluding debate on unilateral acts of States and reservations to treaties, taking up shared natural resources and fragmentation of international law. Also, three draft resolutions were introduced.
Introducing the new chapters, the Chairman of the Commission, Enrique Candioti (Argentina), said on shared natural resources that the Commission planned to start at the level of transboundary groundwaters and expand to oil and gas. Some delegations, however, held that gas and oil were beyond the Commission’s scope, and belonged in the realm of political and diplomatic considerations.
He said work on groundwater issues, however, was already under way, taking account of the importance of groundwaters to social and economic concerns, the main uses of specific groundwaters, and problems with contamination. On the fragmentation of international law, he said the study group dealing with the question had pointed out the contemporary relevance of the topic. Conflicts were increasingly emerging at substantive and procedural levels due to the proliferation of institutions either applying or interpreting international law.
The representative of Uruguay, on the issue of shared natural resources, said the title should read “transboundary natural resources”, since it referred to those that extended through territories under different sovereign countries and required the formulation of international principles and regulations.
On fragmentation of international law, Mexico’s representative said the Commission should not act as an arbiter between institutions but should keep in mind that the lack of coordination between institutions had brought about the inevitable need for the Commission’s study.
Also speaking on those two new issues were the representatives of Norway (for the Nordic Group), Canada, Mexico, Japan, China and Greece.
Iran’s representative spoke on reservations of treaties as the Committee finished its consideration of that debate and that on unilateral acts of States. Giving support to the “reservation dialogue” proposed for the Commission’s next session, he called attention to the so-called doctrine of “super-maximum” effects. He said the concept of reservations was a basic element in consent by States to enter treaties. That should not be destroyed for the sake of a treaty’s integrity.
Also speaking this morning on those completed subjects were the representatives of United States, Australia, Malaysia and Viet Nam.
Speaking on all chapters of the Commission’s report were the delegates of Nepal, Bulgaria, and Pakistan.
Finally this morning, three draft resolutions were introduced from Japan on a Convention on Jurisdictional Immunities of States and Their Properties; from Australia on measures to eliminate international terrorism, and from New Zealand on the scope of legal protection under the Convention on Safety for United Nations and Associated Personnel.
Established by the General Assembly at its second session in 1947, the International Law Commission has the mandate to promote international political cooperation and to encourage the development and codification of international law.
The Committee will meet again in plenary at 10 a.m. tomorrow, 4 November, to continue considering the International Law Commission’s report with a focus on all chapters.
Background
The Sixth Committee (Legal) met this morning to resume its debate on the report of the International Law Commission (document A/58/10). It was expected to continue on the subjects of unilateral acts of States and reservations to treaties, and then to begin considering the Commission’s items on shared natural resources and fragmentation of international law. Finally, it was expected to hear the introduction of draft resolutions and take action on a number of them. (For background on the Commission and its report, see Press Release GA/L/3238 of 27 October).
Draft Resolutions Before Committee
By a draft on the Convention on jurisdictional immunities of States and their properties (document A/C.6/58/L.20), the Assembly would decide that the ad hoc committee on the matter shall be reconvened from 1 to 5 March 2004 with a mandate to formulate a preamble and final clauses with a view to completing a convention on the issue.
A draft on the scope of legal protection under the Convention on the Safety of United Nations and Associated Personnel (document A/C.6/58/L.22) would have the Assembly urge States to take all necessary measures to prevent crimes against such personnel and to ensure that such crimes did not go unpunished and that perpetrators were brought to justice. It would recommend that the Secretary-General continue seeking the inclusion of key convention provisions into status-of-forces, status-of-mission and host country agreements, and that he advise the Security Council or the General Assembly of circumstances supporting a declaration of exceptional risk.
Further by the draft, the Assembly would urge the Secretary-General and other bodies to take practical measures to strengthen protection for those personnel, including those locally recruited who were particularly vulnerable and accounted for the majority of casualties in this category of persons. Finally, it would decide that the ad hoc committee on the matter would convene for one week from 12 to 16 April next, with a mandate to expand the scope of legal protection under the Convention, including by means of legal instruments, with work to continue within the existing framework.
By a draft on measures to eliminate international terrorism (document A/C.6/58/L.19), the Assembly would urge all States to become parties to the relevant conventions and protocols on the matter, as a matter of urgency, and to make the best use of the existing United Nations institutions for the purpose. Further, it would urge States to cooperate with the Secretary-General and each other in ensuring that technical and other expert assistance were provided to States requiring and requesting it.
By the draft, the Assembly would also decide that the ad hoc committee on the matter would continue elaborating a draft comprehensive convention on international terrorism, and continue efforts to resolve outstanding issues on this and also on the convention related to nuclear terrorism. Also, the question of convening a high-level conference under United Nations auspices to formulate a joint organized international response to terrorism in all its forms and manifestations would remain on the agenda.
ENRIQUE CANDIOTI (Argentina), Chairman of the International Law Commission, introduced new chapters of the Commission’s report, covering the topics “Shared natural resources” and “Fragmentation of International Law: Difficulties arising from the diversification and expansion of international law”. On the first topic, he said the Commission welcomed the first preliminary report of its special rapporteur on the topic which set out the background to the subject. The rapporteur proposed to limit the scope of the topic to the study of confined transboundary groundwaters, and oil and gas, with the work to proceed initially on the study of confined transboundary groundwaters.
He said some members of the Commission doubted the contribution the Commission might be able to make as regards the regulation of oil and gas, whose problems were of a different nature and which were usually addressed through diplomatic and legal processes. It was suggested, according to the Chairman, that consideration of those sub-topics, at least, be postponed until the Commission concluded its work on groundwaters.
He drew attention to Chapter III of the report, in which the Commission requested information from governments and international organizations on several aspects of groundwaters, regardless of whether they were related to surface waters or whether they extended beyond national borders. He said the specific information which was sought covered, among others, major groundwaters and their social and economic importance, and main uses of specific groundwaters and contamination problems.
Turning to Fragmentation of International Law, the Chairman said the Commission took note of a report prepared by its study group, which carried out a study in 2000 on “Risks ensuing from fragmentation of International Law”. He said the study group was of the opinion that the topic was of contemporary interest, particularly in view of the possibility of conflicts emerging, at substantive and procedural levels, as a result of the proliferation of institutions that applied or interpreted international law.
ERIC ROSAND (United States) said defining “objections” to reservations to treaties as proposed by the Commission’s special rapporteur on the topic would take away from States the flexibility that they had in expressing them. Extending the rule of late formulation of reservations to enlargement of its scope would be inconsistent with the timing requirements of the Vienna Convention on the Law of Treaties and could undermine the stability of treaty obligations that the Convention was designed to foster. The United States was also concerned at the special rapporteur’s proposal to subject modification of a conditional interpretative declaration to the unanimity rule applicable to late reservations. It was inappropriate for interpretative declarations to be treated more strictly than reservations, the United States representative said.
With respect to unilateral acts of States, he reiterated the skepticism of the United States that the development of a body of articles or rules would be appropriate or helpful, given the great variety of possible contexts in which such acts might occur. He said the United States would, particularly, be concerned by any effort to expand the topic to include consideration of conduct in addition to statements. He urged the Commission to consider ending its work on the topic.
NICOLA LOFFLER (Australia) said her country supported the Commission’s approach in adopting guidelines or recommendations on the conduct of States regarding unilateral acts. It reiterated the emphasis on conduct that evinced an intention to create legal obligations, and suggested that the Commission’s efforts should be focused on how that intention should be ascertained. The scope of the topic of unilateral acts of States should be strictly monitored, and acts of recognition by means of acquiescence excluded from consideration. She expressed Australia’s concern about the modification, suspension and revocation of unilateral acts.
On the question of reservations to treaties, she said any definition of objections included in the draft guidelines should be consistent with the relevant provisions of the Vienna Convention on the Law of Treaties. It should also take account of the practice of States. Australia again considered that the role of the depository of treaties should be aligned with the provisions of the Vienna Convention, particularly its article 77. The depository should be impartial and neutral in the exercise of its functions, and should be limited to transmitting reservations to the parties to the treaty. The depository should not be assigned a role of expressing a view on the impermissibility of a reservation.
MAZNI BUANG (Malaysia) said she supported the effort to identify and elaborate guidelines on when unilateral acts of States created legal obligations in the interest of furthering legal security. States must know when the unilateral expression of their will or intentions would be taken to be legally binding commitments, as opposed to mere political statements. That was more obvious in light of the Commission’s consensus that unilateral acts could not be simply revoked, modified or suspended by subsequent unilateral acts. Also, formulation of legal rules should be deferred until materials on State practice could be analysed. The conduct of States leading to possible legal effects similar to unilateral acts should also be studied with a view towards being included in guidelines or recommendations on the matter.
On reservations to treaties, she said she welcomed a broad-based definition of “objections”. A clear guide on what was an objection was timely, since current practice showed divergence and caused uncertainty among States. Guidelines to encourage States to give reasons for objections to reservations should be formulated. Stating grounds for objections to reservations had many advantages, including transparency and certainty. It also gave reserving States an opportunity to evaluate the validity of an objection and carry out an informed review of its reservation.
NGYUEN DUY CHIEN (Viet Nam) said the guidelines to practice would be of great value to governments and organizations. He gave a detailed analysis of the provisions on objections to reservations and said he welcomed the definition proposed. It should encompass the relations between the State or international organization expressing the reservation and the objection to the reservation made by another State or international organization. The lodging of an objection could affect the treaty only with regard to the objecting State or organization and that which had lodged the reservation. It did not prevent the validity of a reservation in relations between the reserving State or organization and other contracting parties. That should be made clear in the definition.
ROLF EINAR FIFE (Norway), speaking for the Nordic countries, said there could be no doubt that confined transboundary groundwaters constituted a non-renewable natural resource, subject to national sovereignty and jurisdiction. Beyond the territorial sea, coastal state jurisdiction was functionally limited by the Convention on the Law of the Sea. Modern integrated approaches should be considered to understanding the key role and vulnerability of groundwater for sustainable development.
He said the Nordic countries supported a leading policy role for the United Nations while emphasizing the essential role of international financing institutions, in particular the World Bank, for water projects. They noted the role of the World Water Council, an association of expert and professional organizations in the water sector, which was established in 1996. The Nordic countries had prepared, or were preparing, national legislation to ensure an integrated management responsibility regarding groundwater, including through mapping and reporting on resources. They recognized the adoption of the 1997 United Nations Convention on the Law on the Non-Navigational Uses of International Watercourses as an important framework for orderly international processes to deal with international water issues.
Those countries believed that the principles and approaches contained in the Convention constituted a very minimum point of departure in the codification of rules concerning confined transboundary groundwater. They were ready to support the Commission’s study and eventual elaboration of a set of common principles which could be applied on a local, as well as global, level.
TED MCDORMAN (Canada) said his country shared an international land boundary only with the United States; hence the issue of groundwater pollution was an exclusively bilateral one. In terms of jurisdiction and regulation of groundwater, Canada’s relationship with the United States was generally governed by the International Boundary Waters Treaty of 1909, and by the Great Lakes Water Quality Agreement of 1978, amended in 1987. The International Boundary Waters Treaty was implemented by the Canadian domestic legislation, the International Boundary Waters Treaty Act.
He said Canada supported and encouraged the work of the International Law Commission on groundwater respecting the development of an information base on the issues, problems and modes of approach to enhancing protection and sustainable use of groundwaters. At present, however, Canada believed that more such information gathering and contemplation of the issues needed to be undertaken before any sustained discussion of legal principles might be timely.
ALFONSO ASCENCIO (Mexico) said, on the issue of shared resources, that a careful approach should be adopted with regard to water and pollution, and a single approach should be eventually formulated to cover water, oil and gas. Underground water supplied about 75 per cent of water in his country. Aquifers in the area of the Rio Grande were overexploited. Measures to mitigate and prevent pollution should be in keeping with a community’s abilities to take actions, and action should be coordinated appropriately on the broader level. Legislation must be used to achieve that coordination. Also, bilateral agreements were needed, as had been made between his country and the United States.
On the fragmentation of international law, he said the Commission should not act as an arbiter between institutions, though the lack of coordination between those institutions had brought about the need to study the fragmentation. The Commission inevitably had to take on the subject. He said the Commission should study the spheres of jurisdiction of regional law; that could be the basis of a modality that could serve for a useful exchange in the debate the Committee would hold next year.
YUKIHIRO WADA (Japan) said a pragmatic approach should be adopted in studying shared natural resources. The Commission should not be too ambitious in broadening the scope. On the issue of groundwater management, he said that while his country was an island and did not have transboundary groundwater with neighbours, that water was important in activities involving its spas and urban activities. Pollution was a growing problem, detected in more than 1,000 areas. Laws had been put into effect to protect the water from pollution. Governors were required to conduct surveys, as an example, and the Government was required to perform analyses. Japan would submit an in-depth report.
On fragmentation of international law, he said the area had evolved rapidly and had become increasingly difficult for States and organizations to manage. The question was intimately related to trade, States rights and workers rights, all of which were directly affected by related questions. The five topics that had been listed in the relevant report had been outlined in general terms but they could already be applied, for example, to clear up areas of conflict in international law. However, the Commission should be cautious about applying guidelines when information was based on too narrow a study of practice, and they should not apply to legislation States could already be in the process of developing, since situations could exist in which the general regime did not meet needs. A self-contained regime should not be overemphasized when dealing with fragmentation.
GUAN JIAN (China) said China supported the Commission’s decision to begin a study on the topic, since confined groundwaters, compared with other transboundary natural resources, were more closely linked with the productive activities and livelihood of mankind. As transboundary confined groundwaters were under the territories of several States, actions in one State were bound to affect the exploitation and use of those waters in another. The Commission, in its study, should consider the interests of all States and ensure, to the extent possible, their sovereignty over and security of those natural resources.
On the fragmentation of international law, the representative of China said the study of the topic should clarify the inherent lack of coherence and certainty in international law, and show States the way out of the dilemmas in applying international law.
MARIA TELALIAN (Greece), speaking on reservations to treaties, emphasized her country’s agreement with some Commission members that definition of objections to reservations proposed by the special rapporteur was a narrow one when it came to legal effects of objections. It did not consider important State practice on the subject. Greece preferred the alternative suggestion of the special rapporteur (paragraph 363 of the Commission’s report).
It was important that States and international organizations stated clearly and unequivocally the grounds for their objection. She said that recent State practice indicated that States were more willing to indicate the legal reasoning why a reservation was considered unacceptable, and the legal effects of such a determination.
Introduction of Drafts
Japan’s representative introduced the draft on the Convention on Jurisdictional Immunities of States and their Properties (document A/C.6/58/L.20).
Australia’s delegate introduced the draft on measures to eliminate international terrorism (document A/C.6/58/L.19).
The representative of New Zealand introduced the draft resolution on the scope of legal protection under the Convention on Safety for United Nations and Associated Personnel (document A/C.6/L.22).
General Statements on Law Commission Topics
RAM BABU DHAKAL (Nepal), speaking on all chapters of the International Law Commission report, expressed profound appreciation for the Commission’s work to date. He noted with pleasure that the Commission had achieved progress in its deliberations on the topics of responsibility of international organizations, diplomatic protection and reservation to treaties this year. He encouraged the Commission to intensify its efforts on other topics as well.
He said that, in view of the diversified characteristics of international organizations, the proposed three draft articles dealing with the scope and general principles required further consideration. The rules of international organizations were not uniform. The international personality of those organizations and States must be differentiated. On international liability for injurious consequences arising out of acts not prohibited by international law, he said the Commission should continue to give attention to the interrelationship between prevention and liability.
The study on groundwaters would help not only in codifying international rules, but also alleviate the suffering of millions from water-borne diseases in many developing countries.
KRASSIMIRA BESHKOVA (Bulgaria), speaking on the responsibility of international organizations, welcomed the first report of the special rapporteur on the topic. She said the scope should be widened to include responsibility of States for internationally wrongful acts. On reservations to treaties, she welcomed the adoption of guidelines which, she noted, were necessary to fill the gaps in the Vienna Conventions of 1969 and 1986. On the issue of definition of objection to reservations, she said there should be much more flexibility, with the practice of States being taken into account.
She said she also welcomed the first report of the special rapporteur on shared natural resources, which provided the background to the topic. She supported his proposal that the practice of States should be studied. She observed that the inclusion of the topic of fragmentation of international law marked a significant and welcome development in the work of the International Law Commission.
ROSS MASUD (Pakistan) said he did not object to any clarifications of the Vienna Convention and he appreciated the work done in that regard, relative to reservations to treaties. It should be noted that the formulation of a reservation or objection did not affect the entry into force of the treaty and the binding of parties within its domain. The guidelines on late reservations were not in keeping with the Vienna Convention and would introduce an unwelcome uncertainty into the question. Further, it was not within the scope of a depository’s responsibilities to make objections to reservations.
MOSTAFA DOLATYAR (Iran) said the question of protection for a ship’s crew did not fall into the category of diplomatic protection but was covered by the Law of the Sea Convention. On the draft articles adopted this year, he agreed that the State of incorporation was entitled to exercise diplomatic protection. Article 18, dealing with exceptions to the principle enshrined in article 17 on nationality of corporations, was highly controversial and could jeopardize the principle of equal treatment of national shareholders and those having the nationality of another State. Article 22, dealing with legal persons other than corporations, could also cause problems from the perspective of practical implementation.
On reservations to treaties, he supported the “reservation dialogue” that had been proposed for the Commission’s next session. He called attention to the so-called doctrine of “super-maximum” effects. In that, the concept of reservations as the basic element in consent by States to enter treaties was destroyed for the sake of a treaty’s integrity. There should be new wording on the draft guideline to strike a balance between the consent of sovereign States and the integrity of treaties. On natural shared resources, the guiding principle should be the one governing the permanent sovereignty of States over the natural resources, as enshrined in the 1962 General Assembly resolution 1803(XVII).
SUSANA RIVERO (Uruguay) said the topic of shared natural resources was of particular importance to her country. This was due to the fact that under its surface lay part of a gigantic water basin, known as the Guarani Aquifer, which extended under the territory of the other members of the Southern Common Market (MERCOSUR) -- Argentina, Brazil and Paraguay. She said the first report on the topic by the special rapporteur was an excellent point of departure for work to begin on the possibility that the Commission could undertake the task of developing and codifying the topic and the approach to be followed. In her delegation’s view, the topic should be entitled “transboundary natural resources” because it referred to resources that crossed over or extended through territories under different sovereign countries and, therefore, required the formulation of international principles and regulations. The word “shared” was not sufficiently precise, and the comments of Commission members made during its session showed that some had doubts about the meaning of the term “shared”.
She said the phrase to “share” denoted or implied, at least in Spanish, an active attitude on the part of the parties that shared, divided or participated in something. Any rule that was agreed upon should be applied, moreover, to all transboundary groundwaters, independently of whether they were being effectively exploited or used by more than one State. The objective of the Commission should be to regulate transboundary resources which, for that reason, would necessarily be shared by more than one State.
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