|Department of Public Information • News and Media Division • New York|
Sixty-sixth General Assembly
18th Meeting (AM)
Legal Committee Begins Annual Review of Issues from International
Law Commission, Said to Have Ever-Growing Global Impact
Members Also Note Passing of Distinguished Jurist, Antonio Cassese
Before the Sixth Committee (Legal) began its annual review of the report of the International Law Commission today, its Chairman, Hernán Salinas Burgos ( Chile), requested a moment of silence on the recent death of Justice Antonio Cassese. A prominent Italian jurist, Justice Cassese was the first president of the International Criminal Tribunal for the Former Yugoslavia, and a highly respected judge and colleague within the international community.
In his opening remarks, the Chairman also heralded the “richness” of the Law Commission’s report, which he said was a testament to the Commission’s irreplaceable role in the progressive development of international law.
Introducing the report, Maurice Kamto ( Cameroon), Chairman of the Law Commission, praised this year’s session as a productive one. Work on “reservations to treaties” had been completed and its Guide to Practice finalized. The adoption of 67 draft articles, with commentaries, on the “responsibility of international organizations”, and the adoption of 18 draft articles on the “effects of armed conflicts on treaties”, with an annex of relevant treaties, were also major highlights of the Commission’s successful year. The Commission’s report was a “collective effort”, he noted, and one that benefited from the contributions by the Special Rapporteurs, the Chairman and the members of the Sixth Committee and the various working groups.
Patricia O’Brien, United Nations Under-Secretary General of Legal Affairs, focused on the “responsibility of international organizations”, noting that such organizations had grown in number and complexity and were undertaking an unprecedented range of activities in numerous fields. In the age of globalization, she said, they had a greater impact than ever before. Although the principle of the responsibility of international organizations was well-established, she pointed out that its scope, limitations, and practical application had yet to be defined since some draft articles were supported by practice, while some were not or were inconsistent in practice.
She also noted that, although some draft articles were not likely to impact the future practice of the United Nations, others would, notably a draft article that was directly relevant to the United Nations Organization Stabilization Mission in the Democratic Republic of Congo (MONUSCO). In that specific instance, MONUSCO had supported the national army to disarm foreign and Congolese armed groups, but later learned that these same troops were looting, killing, and raping. This resulted in the development of a policy to prevent any perception of association of MONUSCO with such violations. This policy was now applied wherever the United Nations was considering the provision of support to non-United Nations security forces.
The subject of “responsibility of international organizations” was also of concern to the European Union, said its Director and Principal Legal Adviser. The Union’s member States had transferred competences and decision-making authorities on a range of subjects to the Union itself which had resulted in the Union participating in the international arena on its own behalf in its own name. The Commission, in going ahead with the adoption and finalization of the relevant draft articles, had addressed some of the Union’s comments and observations in its General Commentary.
Another topic of discussion on the first day of the debate focused on consideration by the Commission of new topics, with the representative of Colombia stating that the subject of fair and equitable treatment standards in investment law, the protection of the environment in armed conflict, and the protection of people in disasters were especially topical at this time and their consideration illustrated how “in synch” the Commission was with crucial current aspects of international relations.
The delegate of Japan said that the new topic, “protection of the atmosphere”, was currently being addressed through a patchwork of regional and multilateral conventions. He urged the Commission to consider this issue, with the focus solely on the legal questions, and not engage in political debate. He also expressed concern about critical outside comments regarding the work of the Commission, and said there must be a response to these comments. One of Commission’s goals was to transform international law, traditionally influenced by Western countries, into a more equitable international legal system that engendered fair treatment to Asian and African States. This required more active participation by Asian and African members in the work of the Commission; one of the obstacles in appointing Special Rapporteurs from developing countries was the lack of resources to support their work and research, and he appealed to the Sixth Committee to consider providing financial assistance for this purpose.
Speaking on behalf of their regional organizations in the Sixth Committee today were the representatives of Denmark for the Nordic countries, and Chile for the Rio Group. Others speaking in their national capacity were the representatives of Switzerland, El Salvador, Italy, Mexico and the Czech Republic.
The Committee will meet again at 10 a.m. Tuesday, 25 October, to continue its debate on the International Law Commission report.
The Sixth Committee (Legal) met today to begin its annual consideration of the work of the International Law Commission. Before the Committee was the report of the Commission (document A/66/10) on the proceedings of its sixty-third session ( Geneva, 26 April–3 June and 4 July—12 August).
The Committee was to deal with the subject in three stages. First, the Committee was to focus on the “First Cluster” of issues contained in the Commission’s report, including introductory chapters I-III, chapter IV on Reservations to treaties and chapter V on the Responsibility of international organizations. Next, it was to take up the “Second Cluster” of items, including chapter VI on Effects of armed conflicts on treaties, chapter VIII on Expulsion of aliens and chapter IX on the Protection of persons in the event of disasters. Finally, the Committee was to concentrate on the “Third Cluster” of issues in the report, including chapter VII on the Immunity of State officials from foreign criminal jurisdiction, chapter X on the Obligation to extradite or prosecute (aut dedere aut judicare), chapter XI on Treaties over time, chapter XII on the Most-favoured-nation clause and chapter XIII which covers other decisions and conclusions of the Commission during its sixty-third session.
The report states that for its consideration of “Reservations to treaties”, the Commission had before it the seventeenth report of the Special Rapporteur, which focuses the reservations dialogue. An addendum to the report addresses assistance in the settlement of disputes concerning reservations, and proposes a draft introduction on how to use the Guide to Practice. In that regard, the Commission established a Working Group to finalize the Guide to Practice and referred to the Working Group two draft recommendations on the reservations dialogue and on technical assistance and assistance in the settlement of disputes concerning reservations. The Commission adopted the Guide and recommended its widest possible dissemination by the General Assembly. The Commission also adopted a recommendation to the General Assembly on mechanisms of assistance in relation to reservations.
Regarding the “Responsibility of international organizations”, the Commission had before it the eighth report of the Special Rapporteur with written comments from Governments and international organizations. The report says that the Commission adopted 67 draft articles on the matter and recommended that the General Assembly take note of the draft articles in a resolution, annex them to the resolution, and at a later stage consider the elaboration of a convention on the basis of the draft articles.
The report states that during its consideration of the “Effects of armed conflicts on treaties”, the Commission had before it the Drafting Committee’s report from its 17 May 2011 meeting. The Commission adopted 18 draft articles on the matter, commentaries to the draft articles and an annex. The annex contains a list of treaties that the report implies should be active, in whole or in part, during armed conflicts, with corresponding commentaries. The report recommends that the General Assembly take note of the draft articles in a resolution, annex them to the resolution and at a later stage consider the elaboration of a convention.
Concerning the “Expulsion of aliens”, the report notes that the Commission had before it several relevant documents, including a sixth report on the subject, which in addendum 2 completes consideration of relevant proceedings. This includes consideration of the implementation of the expulsion decision, appeals against that decision, the determination of the State of destination and the protection of human rights in the transit State. The legal consequences of expulsion, notably the protection of the property rights and similar interests of aliens subject to expulsion, the question of the existence of a right of return in the case of unlawful expulsion and the responsibility of the expelling State as a result of an unlawful expulsion are also considered. The Commission referred seven draft articles on those issues to the Drafting Committee, as well as a draft article on “Expulsion in connection with extradition” as revised by the Special Rapporteur during the sixty-second session.
Turning to the topic “Protection of persons in the event of disasters”, the report says the Commission had before it the fourth report of the Special Rapporteur dealing with the responsibility of the affected State to seek assistance where its national response capacity was exceeded, the duty of the affected State not to arbitrarily withhold its consent to external assistance and the right to offer assistance in the international community. The Commission referred draft articles 10 to 12, as proposed by the Special Rapporteur, to the Drafting Committee. The Commission also provisionally adopted six draft articles, together with commentaries, including those dealing with humanitarian principles in disaster response, human dignity, human rights and the role of the affected State, the duty of the affected State to seek assistance, and the question of the consent of the affected State to external assistance.
In relation to the “Immunity of State officials from foreign criminal jurisdiction”, the report says the Commission considered the second and third reports of the Special Rapporteur. The second report reviews and presents substantive issues concerning and implicated by the scope of immunity of a State official from foreign criminal jurisdiction. This includes questions relating to immunity ratione personae and ratione materiae, and the territorial scope of immunity; discussions on what criminal procedural measures may be implemented against an official of a foreign State and what measures would violate that official’s immunity, and a focus on whether there are any exceptions to immunity. Meanwhile, the Special Rapporteur’s third report addresses the procedural aspects, focusing specifically on questions concerning the timing of consideration of immunity, its invocation and waiver. The Commission’s debate on the topic revolved around issues relating to methodology, possible exceptions to immunity and questions of procedure.
In the report, the Special Rapporteur acknowledges the ongoing debate and the diverse opinions that exist in relation to the topic, emphasizing the importance of looking at the actual state of affairs as the starting point for the Commission’s consideration of the topic. In the opinion of the Special Rapporteur, the immunity of a State official from foreign criminal jurisdiction is the norm and any exceptions would need to be proven.
Concerning the “Obligation to extradite or prosecute”, the report says that the Commission considered the fourth report of the Special Rapporteur, which addresses the sources of the Obligation to extradite or prosecute, focusing on treaties and custom. In the report, the Special Rapporteur calls the fight against impunity for the perpetrators of serious crimes a fundamental policy achievable, on the one hand, through the establishment of international criminal tribunals and, on the other, through the exercise of jurisdiction by national courts. He then proposes a draft article on international custom as a source of the obligation aut dedere aut judicare. In proposing the draft article, he notes that the list of crimes covered by paragraph 2 of that article is still open and subject to further consideration and discussion.
The report concludes that the reconstituted Study Group on “Treaties over time” completed its consideration of the introductory report by its Chairman on the relevant jurisprudence of the International Court of Justice and of arbitral tribunals of ad hoc jurisdiction. The group examined possible modifications of a treaty by subsequent agreements and practice, as well as the relation of subsequent agreements and practice to formal amendment procedures. The Study Group then began its consideration of the second report by its Chairman on the jurisprudence under special regimes relating to subsequent agreements and practice. In the light of the discussions, the Chairman reformulated the text of nine preliminary conclusions relating to a number of issues, such as reliance by adjudicatory bodies on the general rule of treaty interpretation, different approaches to treaty interpretation and various aspects concerning subsequent agreements and practice as a means of treaty interpretation.
On the “Most-favoured-nation clause”, the report notes that a reconstituted Study Group held a broad discussion based on a working paper on the interpretation and application of most-favoured nation clauses in investment agreements and questions on issues that may need to be considered by the Study Group. The report adds that the Study Group also considered other developments, including recent arbitral decisions. The Study Group affirmed, along with other topics, the general understanding that the source of the right to most-favoured nation treatment was the basic treaty and not the third-party treaty.
Regarding “Other decisions and conclusions of the Commission”, the report states that, among other issues, the Commission established a Planning Group to consider its programme procedures and working methods. It also adopted recommendations on Special Rapporteurs, Study Groups, the Drafting Committee, preparation of commentaries to draft articles, how to make the Commission’s report more informative and the relations between the Commission and the Sixth Committee. Its long-term programme of work, according to the report, will include “Formation and evidence of customary international law”, “Protection of the atmosphere”, “Provisional application of treaties”, “The fair and equitable treatment standard in international investment law” and “Protection of the environment in relation to armed conflicts”.
Remarks by Committee Chairman
The Sixth Committee today had before it the annual report of the International Law Commission. Before beginning its annual review of the report, HERNÁN SALINAS BURGOS ( Chile), Chairman of the Sixth Committee, requested a moment of silence to note the passing of Justice Antonio Cassese, a distinguished jurist who was the first president of the International Criminal Tribunal for the former Yugoslavia.
The Chairman then welcomed the Chairman of the International Law Commission, the Legal Counsel of the United Nations and the many Legal Advisors from capitals around the world, as well as members of the Commission, who were present for the debate. “The richness, density and quality of the report attest to the unique and irreplaceable role that the International Law Commission continues to play in the process of codification and progressive development of international law,” he stated, before offering an overview of the structure and schedule of the debate.
Introduction to International Law Commission Report
The Commission Chairman, Maurice Kamto ( Cameroon), then introduced the report and thanked the Sixth Committee for its “words of appreciation” regarding efforts made by the Commission towards the “progressive development of international law and its codification”.
He said the sixty-third session was an extremely rich and productive session, resulting in the completion of work on the subject of Reservations to treaties and finalization of a Guide to Practice on the matter. The Commission adopted 67 draft articles during the session, accompanied by commentaries, on the Responsibility of international organizations. Also adopted were 18 draft articles on the Effects of armed conflicts on treaties, including an annex containing a list of relevant treaties that would continue to be applied during armed conflicts. Progress had been made on other topics including the Protection of persons in the event of disasters, the Expulsion of aliens, the Immunity of officials from foreign jurisdiction, the Obligation to extradite and prosecute, Treaties over time and the Most-favoured nation clause.
The Commission’s report was a “collective effort,” he said, which particularly benefited from the contributions of the Special Rapporteurs, the Sixth Committee Chairman and the work and Study Groups. He said the Commission would continue to benefit from continued assistance from its Secretariat, the Codification Division and the Office of Legal Affairs. Before referring to specific items and draft articles within the report, he commended the Special Rapporteur on the Reservations to treaties, Alain Pellet, for his exceptional contribution, which made the finalization of the Guide to Practice possible. He then turned to the three `clusters’ that would be discussed and specifically examined substantive elements of the report in three parts: chapters I—V; chapters VI, VIII and IX; and chapters VII, X, XII and XIII.
Remarks of Under-Secretary-General for Legal Affairs
PATRICIA O’BRIEN, Under-Secretary-General for Legal Affairs, began by expressing shared sadness at the death of Justice Antonio Cassese.
Focusing her presentation on the Responsibility of international organizations, she noted that international organizations had grown in number and complexity and were undertaking an unprecedented range of activities in numerous fields with many actors. In the age of globalization, they had a greater impact than ever before. In that respect, the Law Commission had helped to frame relevant legal principles. Draft articles on the matter were already exerting considerable influence on the jurisprudence of regional and national courts, with the possibility of having significant implications for the United Nations and international organizations in the future.
Recalling that the International Law Commission had submitted draft articles to States and international organizations for their comments, she said that although the principle of the Responsibility of international organizations was well-established, its scope, limitations, and practical application had yet to be defined. Mindful of that “daunting challenge”, she said that the Office of Legal Affairs had concluded that while some draft articles were supported by practice, others were inconsistent with, or had no basis in, practice.
Her Office had made several observations, she said, including those regarding the weight that should be given to the draft articles where the practice of international organizations was limited or non-existent; to the need to accord appropriate recognition to the differences between States and international organizations when applying the principles of State responsibility to international organizations; and to the dichotomy between primary and secondary rules, among others. She was pleased that a number of the Office’s suggestions had been addressed in the revised draft articles.
On specific revisions to the draft articles, she noted that in their present form they did not necessarily have the same authority as the Articles on State Responsibility; their authority would depend on their reception. Concerning Article 2, the term “agent” had been defined, limiting it to those persons or entities charged with carrying out or helping to carry out the function of the Organization; as United Nations bodies increasingly partnered with and engaged a wide range of actors, that qualification was important to avoid exposure to unreasonable liability with respect to those who had little or no control with regard to United Nations functions. With the addition of the new Article 5 and commentary to Article 10, she said it had been made clear that it was international law which determined whether an act of an international organization was wrongful, rather than internal rules. Also clarified was the attribution of conduct to an international organization. The International Law Commission had reaffirmed that military operations conducted under national or regional command and control did not entail responsibility of the Organization, the Security Council notwithstanding.
She said that while some draft articles were not likely to impact the future practice of the United Nations, others would. Draft Article 14, for example, on “aid or assistance in the commission of an internationally wrongful act”, was directly relevant to the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO). MONUSCO had supported the national army to disarm foreign and Congolese armed groups, but later learned that those same troops were looting, killing, and raping. As a result, the Secretariat devised a policy, endorsed by the Security Council, to prevent any perception of association of MONUSCO with such violations. The policy now applied wherever the United Nations was considering the provision of support to non-United Nations security forces. In closing, she said that as that area of law developed, it would be interesting to see how practice affected the development of the principles and vice versa.
MICHAEL BRAAD (Denmark), speaking for the Nordic countries and addressing the work of the Law Commission as the “central body in the codification and progressive development of international law, welcomed the decision by the Commission’s planning group to establish a Working Group on Methods of Work. Because the Commission’s work and its timely results depended solely on its members and their commitment, it would be useful to keep an attendance record during Commission sessions. Additionally, States should nominate members to the Commission with a strong background in international law, avoiding policies that would determine nominations and members’ contributions.
He also welcomed the reconstitution of the Working Group on the Long-term Programme of Work, noting the five proposals for new areas of work. Among those proposals, the Commission should prioritize the “protection of the environment in relation to armed conflict” and the “protection of the atmosphere and formation and evidence of customary law”. On the other hand, before the Commission considered inclusion of the “fair and equitable treatment standard in international investment law”, work on the most-favoured nation clause should be completed.
Turning to the Responsibility of international organizations, the draft articles adopted by the Commission this year made a useful attempt at describing practice and applicable rules on responsibility. It had, however, become clear that practice in some areas was relatively sparse and not always consistent. That raised the question as to what extent rules on Responsibility of international organizations had “crystallized or matured to the necessary degree of precision” to form the basis for a convention. He was of the view that the draft articles should serve as inspiration and be refined based on further State practice.
On matters concerning treaties, he called the completion of the Guide to Practice on Reservations to treaties “a significant piece of work”. The Nordic countries supported the Commission’s emphasis on the reservations dialogue, but not the Commission’s proposal concerning a dispute resolution mechanism. Regarding “impermissible reservations”, particularly the effect of an invalid reservation, he was opposed to the change made by the Commission, which made the status of the author of an invalid reservation dependent upon the author’s expressed intention. He was of the view that the “severability” of an impermissible reservation was supported by State practice; the option of severability secured bilateral treaty relations and opened the possibility of dialogue within the treaty regime. The author of an invalid reservation should, therefore, continue to be bound by the treaty in questions without the benefit of the invalid reservation.
ALEJANDRA QUEZADA ( Chile), speaking for the Rio Group of countries, expressed her appreciation for the work of the International Law Commission and the efforts of the Special Rapporteurs. However, she urged that delegations receive the Commission’s entire report prior to the beginning of the General Assembly to allow time for a more in-depth examination. That, in turn, would allow for more detailed and comprehensive discussions.
She also urged that alternative ways to support the work of the Special Rapporteurs be explored, as noted in past sessions, and expressed hope that “concrete action” be taken at that time. Further, the “fluid interaction” between the Commission and Member States was critical to the Law Commission’s work. In that regard, she said the questionnaires should focus more on the main aspects of the topics under consideration.
Continuing, she noted that because of the diversity of State legal departments, the provision of technical information was dependent on the size and the infrastructure between international law teams. Thus, the opinions of States who participated more actively should not be the only views taken into account on the subjects on hand. She also suggested that the 64th session of the Law Commission, which would be taking place in Geneva, should also have part of its session in New York in order to facilitate a direct contact between the Commission and the Sixth Committee. She noted that the last time the Commission held a session in New York was in 1998.
Furthermore, enhanced cooperation and dialogue between the Commission and Member States called for strengthened contacts and consultations between State representatives and the Special Rapporteurs during Sixth Committee meetings, which at the present time was limited due to budgetary implications.
She spoke of the importance of the “Thematic Dialogue” between the Commission and the Sixth Committee. That informal exchange should always be scheduled near the time of the meetings of Legal Advisers, in order to avoid overlap with other relevant meetings which might jeopardize their participation. She acknowledged the ongoing efforts by the Commission to improve its working methods, and suggested that the Commission might benefit from receiving the views of Member States as a way to enhance its work and relationship with the Sixth Committee.
LUCIO GUSSETTI, Director and Principal Legal Adviser of the European Commission, speaking for the European Union, commended the International Law Commission for the adoption on the second reading of the set of 67 draft articles and commentaries on Responsibilities of international Organizations. He said that topic carried special interest for the European Union which was potentially most impacted by international rules of responsibilities of organizations, because of its extensive participation in international treaties and activities. The Union’s member States had transferred competences and decision-making authorities on a range of subjects to the Union itself, which had resulted in the Union participating in the international arena on its own behalf in its own name.
He said certain issues that required modification had been taken into consideration in the draft articles and commentaries. The Union, after careful examination, had sent the Commission general and specific comments on those draft articles, and he noted their inclusion in the official records of the General Assembly with regards to the Commission. However, the draft articles did not sufficiently address the special characteristics of the European Union, as a regional integration organization.
While the European Union would maintain its earlier views on the draft articles and commentaries, he said it welcomed the General Commentary preceding the draft articles as it addressed some of the Union’s comments and observations. He noted the recommendation of the Commission to the General Assembly to consider the elaboration of a convention based on the draft articles at a later stage.
VALENTIN ZELLWEGER ( Switzerland) first recognized the work of Special Rapporteur Alain Pellet for his contributions to the issue of Reservations to treaties – evident, he said, in the 17 existing reports on the matter. The Guide to Practice, he said, would undoubtedly become a reference that would facilitate the complex problems of Reservations to treaties.
Focusing the rest of his discussion on the Responsibility of international organizations, he said that as the problems with which States were confronted had become increasingly global, international cooperation and the role of international organizations, in particular, had become increasingly important. The draft articles on the topic provided a reference text which could be consulted by States and international organizations to guide their conduct.
Noting variance both among international organizations and State behaviour, he said the general terms of the draft articles would provide appropriate responses to legal questions posed by international organizations. In that regard, he was supportive of the Commission’s recommendation to the General Assembly, asking it to “take note” of the draft articles on the Responsibility of international organizations and to consider at a later stage the elaboration of a convention.
CAMILO LOUIS ( Colombia) noted the achievements of the Commission to date and commended the final outcome of five items, including the adoption of the Guide to Practice in Reservations to treaties, after 20 years of work on the matter. He specifically noted the 17 reports of the Special Rapporteur on that topic, which he observed was a “record”. He said he looked forward to a “constructive debate” at a later session.
Turning to issues still being considered, he said that Chapter III, which included useful questionnaires to States, was of special interest and the observations of States would be beneficial to the Commission. With regard to the five new topics being considered for future work, the subjects of fair and equitable treatment standards in investment law, the protection of the environment in armed conflict, and the protection of people in disasters were especially topical at that time. Their consideration by the Commission showed the world that the Commission was “in synch” with the current events that were important in international relations.
MANUEL MONTECINO GIRALT (El Salvador), focusing on the work on Reservations to treaties, said, the Guide to Practice was a significant achievement, as it made progress towards developing rules to systemize guidance on the subject. It was commendable that the Law Commission had taken into account the comments of States before approving a final version of the Guide, and had removed the guideline on “collective acceptance”. In that respect, the Commission’s “reform” of many of the guidelines made the Guide to Practice more precise and clear and promoted its correct and practical use. He said the two annexes in the Guide -- the first on dialogue and the second on the establishment of a mechanism of assistance for Reservations to treaties -- would promote use of the Guide, and enhance the reservations discussion.
Establishment of the mechanism of assistance would specifically support dispute resolution, he added, noting that that mechanism was flexible and compatible with the non-compulsory nature of the Guide. The second annex, however, contained no provisions regarding the constitution and functioning of the mechanism and should be broadened.
Turning to the Responsibility of international organizations, he said the draft articles were the result of significant development of the topic over more than 50 years within the United Nations. The draft articles harmonized norms of international organizations and those of States, and were based on the principle that any internationally wrongful act was attributable to the international responsibility of its author. In that regard, he said the jurisdiction of international organizations was not general in nature, but was governed by specific principles. Replacing the term “fundamental human rights” with “human rights” was commendable; a lack of specificity with regard to that term allowed for increased discretion for adopting countermeasures. He expressed support for the recommendation of the International Law Commission to include the draft articles as a resolution and to adopt a convention at a later date.
SALVATORE ZAPPALA ( Italy) said the Law Commission Chairman deserved much of the credit for remarkable progress made over the past year, particularly with regard to adopting guidelines on Reservations to treaties and draft articles on the Effects of armed conflicts on treaties and on the Responsibility of international organizations. He noted the contributions of Italian scholars -- Professors Roberto Ago and Gaetano Arangio-Ruiz on State responsibility, and Professor Giorgio Gaja on the Responsibility of international organizations.
On the draft articles on the Responsibility of international organizations, he said it was essential for them to be coherent with those on State responsibility. Each article should be considered separately with regard to States and international organizations. The draft articles in their current form indicated how far one could conclude that the same or similar rules applied to States and international organizations.
The draft articles also identified certain rules, specific only to the Responsibility of international organizations -- for example, the responsibility of a State, if any, when an organization of which it was a member incurred international responsibility. In general commentary to the draft articles, it was noted that given limited practice in that area, work on the topic was “more an exercise in progressive development” than on the articles on State responsibility.
Noting that several international organizations had insisted that the responsibility of each of them was governed by special rules, he said he was of the view that, because very few examples of relevant special rules had been provided, one might wonder whether, by insisting on the applicability of those special rules over general rules expressed in the draft articles, certain international organizations might be trying to exempt themselves from the general rules.
In closing, he expressed a shared sadness regarding the recent death of Justice Antonio Cassese, whom he called a “humanist, great human being and true friend” who stood up for justice, human rights and humanity.
RODRIGO LABARDINI (Mexico), thanking the Commission for its work, turned to chapter III which addressed specific issues of interest to the Commission and which requested comments from States. On the Immunity of State officials, he said he believed that there was no consolidated standard on lex lata (what the law is) on that topic. Thus, the development of the subject of immunity might be a positive step, including investigating if high State officials should enjoy lex lata or lex ferenda (what the law ought to be). In that regard, he supported the Commission’s work towards progressive development.
Turning to the topic of the Protection of persons in disasters, he said that obligation should not be to provide assistance but to consider the request. Referring to the relevant articles, he noted that there was an obligation to cooperate, but that such obligation was subjected to several factors including, among others, the national capacity of the State to provide rescue.
On the issue of new topics, he said there were three that were of importance to his country: that of the formation of international customary law, the application of treaties, and the protection of the environment in armed conflict. He urged that those be priorities in the work of the Commission. He appreciated that the Commission remained open to new topics and new issues, since that would not only strengthen the relationship between the Sixth Committee and the Commission, but also strengthen the rule of law.
SHINYA MURASE (Japan), noting that he was a member of the Law Commission, spoke in his national capacity and extended his delegation’s appreciation for the Chairman’s leadership during the last, pressured-filled weeks of completing the Commission’s work. The continuation of the work of the Commission was crucial in the codification and progressive development of international law. He expressed concern over “critical comments” he had heard from outside the Commission, in particular, from academic circles, which deemed the Commission “useless” and called for its disbanding.
He urged the Sixth Committee and the Commission to respond to those comments with “the utmost sincerity”. Acknowledging the diligence in which the Special Rapporteurs carried out their work, he conceded that the slow pace of progress on some topics was due in part to the delay of the reports of the Special Rapporteurs; he expressed hope that the Commission would take a “disciplined stance” and encourage an adherence and compliance to the new guidelines.
He said one of the Commission’s goals was to transform international law, traditionally influenced by western countries, into a more equitable legal international legal system that would be fair to Asian and African States. He called for more active participation by members from those countries in the work of the Commission and expressed his concern that there was currently no Special Rapporteur from Asia. He noted, however, that one of the obstacles in appointing Special Rapporteurs from developing countries was the lack of resources for conducting their work and research, pointing out that “even the small honorarium was abolished in 2002”. He appealed to the Sixth Committee to remedy that situation and to consider providing financial assistance to Special Rapporteurs from developing countries.
On the question of new topics, he said “protection of the atmosphere” was of great importance; for the Commission, currently the multitude of regional and multilateral conventions on transboundary air pollution and climate change existed as a patchwork of instruments. It was a “pressing concern” of the international community. The Commission should consider the issue solely on the legal questions and not engage in political debate.
He said that consideration of “final products” from the Commission had often been postponed by the Committee for several years, which sometimes led to an “almost indefinite postponement”. Many draft articles “seem to have been circling around in outer space”, he added, or, as in the case of the draft articles on most-favoured-nation clause, were buried by deferring consideration until “a future time” which seemed not to come. That was a disreputable practice for the Sixth Committee, which was charged with overseeing the Law Commission’s activities.
PAVEL ŠTURMA ( Czech Republic) welcomed the Commission’s adoption of the 67 articles on the Responsibility of international organizations. In that regard, he noted that the World Health Organization and a group of other organizations had suggested more emphasis on “the principle of specialty.” He was of the view, however, that the Commission had to draft general rules in that regard, while the priority of special rules was safeguarded in Article 46.
Because the structure of international organizations had become complex, he added, the amendment made to Article 2, which included the term “organ of an international organization” in addition to “agent”, was a helpful change. The newly included Article 5, which characterized internationally wrongful acts committed by international organizations as governed by international law, was also helpful, in that it might avoid future discussions about the nature of the rules of the organization. Likewise, in Article 10, an important indication was made that the rules of an organization may count as international obligations.
One of the most complex problems facing that topic, he said, lay in drawing a line between the responsibility of an international organization and its member States. In that regard, Article 17, which discussed the circumvention of an international obligation, could follow the commentary proposed by the Special Rapporteur, namely, that the mention of circumvention was more of an explanation than an additional condition for incurring international responsibility. Another problem concerned the line between binding and non-binding acts; the amended text, dropping the notion of “recommendation” and including reference to “authorization” was his preference in that regard.
In closing, he said the Commission was now entering some areas of international law which it had never before addressed, such as the environment, humanitarian law and investment law. The Czech delegation particularly welcomed inclusion of the topic “fair and equitable treatment standard in international investment law” since there existed different views on the content and source of that standard, and “provisional application of treaties”.
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