4 November 2005
UN International Law Appreciation Programme for Young Lawyers Said to Have Positive Impact for Goals of World Body
Legal Committee Speakers Commend Value of Seminars, Fellowships; Debate on Topics from Law Commission Report is Concluded
NEW YORK, 3 November (UN Headquarters) -- The United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law, was described as a low-cost investment which had an important impact in fulfilling the goals of the United Nations, by the speaker for Mexico, as the Sixth Committee (Legal) concluded its consideration of a report on the Programme this morning.
He applauded the annual seminar on international law held by the International Law Commission, which he said allowed a new generation of young lawyers to familiarize themselves with developments in the field, and which, in turn, had an impact on national activities in the teaching and promotion of international law.
The representative of the Russian Federation noted that the Seminars of the Programme, and the fellowships it granted, made it possible for young jurists in the field of international law to enhance their knowledge and, moreover, to get to know one another better.
Also speaking on the subject were the representatives of Poland and the United Republic of Tanzania.
The Sixth Committee this morning also concluded its discussion of the report of the International Law Commission.
Statements were made on behalf of the United Kingdom, Indonesia, Egypt, Japan, Iraq, Argentina, United States, Venezuela, Russian Federation, Nigeria, Mexico and Algeria.
The Chairman of the International Law Commission made closing comments.
In other business, the Sixth Committee approved, without a vote, a draft resolution granting Observer Status in the General Assembly for the Ibero-American Conference.
The Committee will meet next on Wednesday, 9 November, at 10 a.m. to take up the report of the Committee on Relations with the Host Country, and to take action on several draft resolutions.
The Sixth Committee (Legal) met this morning to conclude its discussion of the report of the International Law Commission. (For further information, see Press Release GA/L/3282 of 24 October.)
The Committee was also to take up the report of the Secretary-General on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law. In addition, the Committee was expected to take action on the draft resolution approving Observer Status in the General Assembly for the Ibero-American Conference. (For further information, see Press Release GA/L/3288 of 2 November.)
CHANAKA WICKREMASINGHE (United Kingdom), referring to the topic of "effects of armed conflict on treaties" in the Law Commission report, said he agreed with the Special Rapporteur that the issue was essentially an aspect of the law of treaties, rather than an aspect of the law on the use of force. In relation to draft article 4, he agreed that it was broadly correct that the intention of the parties to a treaty was likely to be the soundest guide, both in terms of principle and practical application, in determining the effect of armed conflict on that treaty, whether such intention appeared from an express provision or must be inferred. He questioned the inclusion of certain of the categories of treaties enumerated in article 7, such as for example, treaties on the environment. Finally, while draft article 10 was broadly along the right lines, he did not think it was the right place to review the law on the use of force.
He agreed that the "clean hands" doctrine should not form a part of the Commission's work on diplomatic protection.
He said the legal issues raised by the topic of "fragmentation of international law" were broad-ranging and covered many of the most complex and challenging issues of contemporary international law. He noted that there had been none of the usual detailed consultation of Governments on the work, as it had progressed and said he, therefore, urged the Commission to proceed with caution. His Government did not consider that the subject matter lent itself to any kind of prescriptive outcome, such as was implied by the terms "guidelines" or "principles.
ADAM MULAWARMAN TUGIO (Indonesia), first addressing the topic of "responsibility of organizations", said the situation had presented a challenge in outlining a "one-fit-for-all" formula. He agreed that the draft articles should, to the extent possible, follow those in relation to "state responsibility for internationally wrongful acts". However, the question of responsibility of an international organization had not been examined thoroughly in international tribunals, other than in the European hemisphere.
As to "expulsion of aliens", he said, the topic was particularly relevant in the contemporary world where globalization had made transboundary movement of people more intensive. The topic should include migrant workers as they could be considered aliens from the perspective of the hosting countries, irrespective of the regular or irregular status of their presence in the receiving country. States were obligated to ensure just and fair procedures for expulsion. Expulsion should not be carried out with hardship, violence or unnecessary harm. He did not believe, however, that the draft should include the question of refusal of admission, internally displaced persons, and extradition for the purpose of prosecution.
On "shared natural resources", he said that permanent sovereignty over natural resources was exercised in the interest of national development and well-being of the people of a State. Transboundary aquifers should be subject to the national jurisdiction of the States in whose territory the aquifer was located.
Turning to the draft articles on effects of armed conflict on treaties, he said they were only applicable to armed conflict of an international character. He said he was open to the suggestion of broadening the scope of application to include treaties concluded between States and international organizations.
On diplomatic protection, he said he believed that a State had the right to exercise diplomatic protection and to seek a suitable remedy if one of its nationals had suffered injury caused by another State, even if that person's own conduct elicited the wrongful response by the foreign State. Putting aside the "clean hands" doctrine would allow the Commission to become more focused on matters of a practical nature that needed further elaboration.
MAHMOUD SAMY (Egypt), speaking on shared natural resources, noted that the draft articles constituted a framework convention, including guidelines.
He proposed an addition of a paragraph in the preamble about the obligation for all countries that shared aquifers. Those countries should conclude an agreement in respect to international law. The agreement would be binding for the parties and also serve as a reference point for third parties. It would be useful to draw a link between the draft articles and the 1997 Convention on the Transboundary Navigational Uses of Watercourses. The equitable utilization of shared aquifers could prevent conflicts. It was necessary that a distinction was drawn between "recharging aquifer" and "non-recharging aquifer" in article 2(e) and (f).
He proposed the rewording of article 3 on bilateral and regional arrangements, to read: "The parties to an arrangement referred to in para 1 shall consider harmonizing such arrangement where necessary with basic principles of the present convention… This convention shall not alter the rights and obligations of States parties which arise from agreements compatible with this convention and which do not affect the enjoyment by other States parties of their rights or the performance of their obligations under this convention."
He noted that the provisions of article 5(2) reflected those of article 311 of the United Nations Convention on the Law of the Sea. The draft articles should not align themselves to those provisions. As regards article 13, on the protection of recharge and discharge zones, he said a compulsory notice should be given to aquifer States, regarding detrimental impacts on the recharge process.
On the responsibility of international organizations, he said Egypt agreed with the conclusions of the Special Rapporteur on the topic. It was important that States had the freedom to make political declarations. On fragmentation of international law, he said practical dimensions of the subject needed to be taken into account. He suggested elaboration of guidelines. On the topic of expulsion of aliens, he said the Commission should take account of State practice and customary international law. He agreed with the view of the Special Rapporteur on the topic of reservations to treaty, which the Commission should stick to the framework of the 1969 and 1986 Vienna Conventions on the Law of Treaties.
KOICHI HASEGAWA (Japan) said his delegation was not certain whether it was correct, under the United Nations Charter, to assume that there was no difference in the legal effect concerning treaty relations between an aggressor State and a self-defending State. That point needed careful consideration at the Law Commission session next year. As regards article 4, he said the Commission should consider other criteria than "intention", as proposed by the Special Rapporteur. It was not clear whether it was appropriate to deal with concepts of mode of suspension or termination, proposed in article 8 of the draft articles. The Commission should study the possible difference between the legal effects of suspension and those of termination in that context, and decide whether there was a need to distinguish those concepts.
On the question of fragmentation of international law, he said States involved in the rule-making process should try to avoid overlap or conflict with other international instruments. Even if such an effort was made, ambiguity in certain regulations governing the law of treaties could cause problems in producing new rules consistent with other international rules. It was essential for practitioners to have a clear understanding of the relationships among various legal instruments. He said his delegation appreciated the approach taken by the Commission's study group, in concentrating on the issues relating to the Vienna Convention on the Law of Treaties.
RIADH AL-ADHAMI (Iraq) said the draft articles on the effects of armed conflict on treaties formed a good basis for the discussion. However, the draft articles limited the scope of their application to treaties between States and did not extend to those concluded with international organizations. He found that approach very restrictive. Concerning draft articles 2, he favoured the inclusion of non-international armed conflicts in the draft. As to draft article 3, on the termination or suspension of a treaty during an armed conflict, he said that while continuity of treaties was an important factor in an examination of the study, continuity actually ran counter to the practice of States. Armed conflict usually led to the suspension of treaties between States. He therefore believed that the draft articles were lacking in realism in that regard, and needed to be redrafted taking the practice of States into account.
DIEGO MALPEDE (Argentina), addressing the topic of effects of armed conflict on treaties, noted that the report of the Special Rapporteur included references to the sovereignty dispute between Argentina and the United Kingdom concerning the Malvinas islands. He said he took exception to the accuracy of several of the references and requested that the Commission issue corrections. For example, he rejected the use of the word "invasion" in paragraph 103 of the report.
He said the islands were an integral part of the territory of Argentina illegitimately occupied by the United Kingdom, and were the object of a sovereignty dispute recognized by the international community. He cited several General Assembly resolutions that urged the two countries to resume negotiations to find a peaceful and lasting solution to the dispute. He further rejected the historical references that had been made to an alleged abandonment of those islands by Spain, which he said was not correct.
ELIZABETH WILCOX (United States) spoke on all three final topics of the International Law Commission being considered by the Sixth Committee. On the effects of armed conflicts on treaties, she said the Commission's work could further contribute to the codification and development of international law relating to treaties. It was encouraging that the Special Rapporteur on the subject had adopted an approach to encourage continuity of treaty obligations in armed conflict, in cases where there was no genuine need for suspension or termination.
She spoke of several issues which, she said, her Government considered to be important. On the provisions of article 4, she said it was necessary that other factors were considered, including the object and purpose of the treaty. Article 4 dealt with factor or factors that indicated whether or not a treaty might be terminated or suspended in cases of armed conflict. The Special Rapporteur considered that the intention of the parties at the time of the conclusion of the treaty should be determinative. She said that seemed problematic to her Government, since generally when parties negotiated a treaty they did not consider how its provisions might apply during armed conflict.
She also commented on articles 5 and 7, describing the latter (on the operation of treaties, on the basis of implications drawn from their object and purpose) as the most complex of the draft articles on the topic. Article 7 listed 12 categories of treaties that implied that they should be continued in operation during an armed conflict. She said that was problematic, because attempts at such broad categorization of treaties always seemed to fail. It would be more productive if the Commission enumerated factors that might lead to the conclusion that a treaty, or some of its provisions should continue (or be suspended or terminated) in the event of armed conflict.
With respect to diplomatic protection, she said the United States was pleased that the "clean hands" doctrine had been removed from the draft articles. The Law Commission's work on the topic should be limited in scope to the codification of customary international law or, at most, vary from or supplement customary international law only as warranted by sound public policy considerations, supported by a broad consensus of States.
With respect to the fragmentation of international law, she said the Commission and its study group appeared to be placing emphasis on ensuring that the outcome of the Commission's work should be of practical use to legal experts in foreign offices and international organizations, and to judges and administrators coping with questions concerning conflicting and overlapping obligations, resulting from different legal sources. The United States encouraged such an approach, and it believed, as did the Commission, that the topic was not suitable for draft articles. With regard to the Commission's work on the issue of hierarchy in international law, she said it was important that the Commission not adopt any rule that could be interpreted as limiting the primacy of the United Nations Charter obligations of the Security Council.
MIRNA MAS Y RUBI SPOSITO (Venezuela) highlighted one aspect she considered of fundamental importance in the formulation of reservations to treaties that had been adopted by the United Nations, including that of a typical clause referring the resolution of disputes to the International Court of Justice. If a treaty permitted only certain reservations, it would be obvious that others would prohibit it.
She said her delegation considered that a restrictive approach could limit the right of States to formulate reservations to treaties that were not compatible with its object and purpose.
On the question of unilateral acts of States, she said that even though it was a difficult and controversial topic, it could be the subject of codification and progressive development of international law. Venezuela supported its inclusion in the Commission's work programme. She said that while there had not been the progress expected, because of very different opinions, she still believed it was possible to make progress on the topic. She stressed the importance of the definition of unilateral acts.
Turning to the issue of shared natural resources, she said the Latin American countries had developed an agreement on the transboundary aquifers on the continent, as in the case of the Guarani Aquifer System. Venezuela had undertaken studies with Colombia and Brazil on transboundary aquifers. She considered it essential that the draft articles included provisions on the sovereignty of States over their natural resources.
MARIA ZABOLOTSKAYA (Russian Federation), speaking of the effects of armed conflict on treaties, said the report of the Special Rapporteur had raised several issues, such as whether armed conflicts suspended treaties, and the effects of the legality of armed conflicts. The Commission had taken the right general approach. The topic should be dealt with under the law of treaties and not the law of the use of force. There was no need for a definition of "armed conflict", nor for determining cases for the legality or illegality of the use of force. She said the draft articles should not deal with armed conflict of a non-international character. The start of an armed conflict did not ipso facto suspend a treaty.
She believed the doctrine of "clean hands" should not be included in the topic of diplomatic protection.
IGNATIUS AYUA (Nigeria), first addressing the issue of shared natural resources, said he appreciated that draft article 18 provided for scientific and technical assistance to developing countries. He also agreed with the provisions on emergency situations and protection in time of armed conflict.
He believed the draft articles on effects of armed conflict on treaties should take into account the wrongful character of recourse to force in international relations, and the fundamental distinction between aggression and legitimate individual or collective self-defence. He agreed that the scope should include both internal and international armed conflicts, taking into account that some internal conflicts usually ended up with wider regional and/or international repercussions.
On the topic of expulsion of aliens, he said that while the right of sovereign States to expel aliens had been guaranteed in law, the exercise of that right must follow due process. The act of expulsion must also be formal, in order to make room for appeal, and must be in accordance with law. Those expelled must not be subjected to any form of torture or abuse. Compulsion and detention should be avoided, except in cases where the alien refused to leave or tried to escape from the control of State authorities. Furthermore, the decision to expel should not be based on any religious, ideological, ethic or racial consideration.
Turning to the Commission's work in general, he welcomed the annual International Law Seminar hosted by the Commission, saying it played a crucial role in introducing young lawyers, particularly from developing countries, to various issues of international law and the work of the Commission. He expressed appreciation for the voluntary contributions that made such participation possible. He said he noted with regret, however, that there was often a low participation from developing countries in deliberation of Commission agenda items and a poor response from them to requests for information from Member States.
He urged the Commission, the Sixth Committee and the Office of Legal Affairs to identify the root cause of the problem and to jointly take proactive measures to address them.
GEMI GONZALEZ (Mexico) said the approach taken to the topic of diplomatic protection was the right one: inclusion of the "clean hands" doctrine in the draft was controversial, as there was reasonable doubt as to whether the doctrine could apply in diplomatic protection. He elaborated on his view of why the doctrine of the "clean hands" doctrine may not apply in the field of diplomatic protection, based on the examination by the Special Rapporteur.
On the subject of shared natural resources, he suggested that after the Commission ended its work on transboundary groundwaters, it could begin to consider such a sub-item as oil and gas. He said the draft articles should take into account the 1997 Convention on Non-Navigational Uses of International Watercourses, but only to a certain extent. Tranboundary groundwaters were significantly different from surface waters. The obligations of non-aquifer States should be excluded. A reference to the precautionary principle should appear somewhere in the draft. A reference to the permanent sovereignty over natural resources could be included in the preamble. However, he added, the question must be seen through the prism of sustainable development, and the obligation to guarantee that activities did not cause harm to the resources of others. He said he agreed with the importance attached to regional and bilateral arrangements, but only so long as those agreements were compatible with the general principles of the draft articles.
EL HADJ LAMINE (Algeria), speaking on the responsibility of international organizations, agreed with the Special Rapporteur on the topic about the similarities in the draft articles and those relating to the responsibility of States. He said his delegation supported the approach taken by the Special Rapporteur on the topic.
He congratulated the Special Rapporteur on the subject of expulsion of aliens, and expressed support for the methodology he had taken on the subject.
He said the right to expel should conform to international law.
On the new topic on the Commission's agenda, the obligation to prosecute or to extradite, he said it warranted more study. On the issue of shared natural resources, he said the provisions of the 1997 Convention on the Non-Navigational Uses of International Watercourses should be kept in the preparation of the related draft articles. The next text should be more detailed. His delegation supported the principle of the sovereign right of States over their natural resources. It supported the approach taken by the Special Rapporteur.
International Law Commission: Closing Remarks
DJAMCHID MOMTAZ, Chairman of the International Law Commission, in closing remarks at the end of the debate on the Commission's report, thanked Committee members for their contributions. He said their comments were substantive and useful to the Commission. The Commission worked as a body and it would therefore be inappropriate for him to respond to the comments made by representatives during the debate. The Commission's secretariat would examine the various comments for the Commission's study.
He said the Commission relied on the comments of Governments in its work, and reminded delegations that the Commission intended to complete the second reading on the draft articles concerning internationally wrongful acts and diplomatic protection. He urged Governments to submit their responses to questions submitted by the Commission on matters relating to the topics, to enable the Commission to complete its work on them.
The Sixth Committee Chairman, Juan Antonio Yanez-Barnuevo, paid tribute to the Law Commission Chairman and joined him in appealing to Governments to submit their responses to questions relating to the topics referred to by the Chairman, meeting the deadline set by the Commission.
Action on Draft
The Committee approved the draft resolution granting Observer Status in the General Assembly for the Ibero-American Conference.
Programme of Assistance
The Committee then turned to its agenda item on the report of the Secretary-General on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law (document A/60/441).
GEMI GONZALEZ (Mexico) said that while the Programme of Assistance was of benefit in all countries, it was particularly important to developing countries in helping build necessary capacity. He highlighted the annual seminar on international law in Geneva, which he said, allowed a new generation of young lawyers to familiarize themselves with developments in the field. That, in turn, had an impact on national activities in the teaching and promotion of international law.
He said he was aware of the financial limitations of the Organization in trying to maintain all its activities. He called on countries to contribute to strengthening the Programme describing it as a low-cost investment, which had an important impact in fulfilling the goals of the Organization.
ANDRZEJ MAKAREWICZ (Poland) noted that the central theme of the American Society of International Law's 2006 Centennial Meeting would be "A Just World Under Law". He said that meeting, and similar meetings in other countries, would be extremely useful. They provided opportunity for both introspection and initiative, and allowed a reflection on their responsibility, as lawyers working in the international arena, to bring about a just world.
He recalled that the Secretary-General, in 1999, had identified the consolidation and the advancement of international law as the second most important goal of the United Nations, next to peace and security (the Strategy for an Era of Application of International Law). He said the study and respect for international law had to be promoted forcefully, especially among decision and public-opinion makers, particularly those in the mass media.
He said the Secretary-General's report under discussion, showed that much work had been done in the field of the teaching, study, dissemination and wider appreciation of international law. He had found the website of the United Nations Treaty Collection extremely useful, and he asked why free access to it was not provided for all users. It was in their common interest to ensure such an access, he said.
ANDY MWANDEMBWA (United Republic of Tanzania) said his delegation could not over-emphasize the role of the Programme of Assistance in helping developing countries build their capacity through the various courses and training programmes under it. The knowledge gained by young men and women from the various seminars, courses and workshops had been of great benefit, not only to their countries but also because it laid the foundation for those who would in the future competently serve the international community in the field of international law. He commended the activities carried out by the Office of Legal Affairs relating to the Programme, and referred in particular to the various United Nations legal publications, which were useful to Member States. He also commended the United Nations Institute for Training and Research (UNITAR) for its programmes.
MARIA ZABOLOTSKAYA (Russian Federation) emphasized the important work done by the Programme of Assistance. The seminars and the fellowships granted made it possible for young jurists in the field of international law to enhance their knowledge and, moreover, get to know one another better. The adoption of the United Nations Charter and the charters of the United Nations agencies was one of the most important events in the field of international law. She said the Russian Federation had hosted a special conference for the sixtieth anniversary of the United Nations, during which there had been a fruitful discussion of contemporary international law.
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