Legal Committee Notes Completion of Key Issues by International Law Commission; Delegates, Some Critical, Discuss Approaches for New Topics, Future Work
Legal Committee Notes Completion of Key Issues by International Law Commission; Delegates, Some Critical, Discuss Approaches for New Topics, Future Work
|Department of Public Information • News and Media Division • New York|
Sixty-sixth General Assembly
19th Meeting (AM)
Legal Committee Notes Completion of Key Issues by International Law Commission;
Delegates, Some Critical, Discuss Approaches for New Topics, Future Work
As the Sixth Committee continued its annual discussion of the report of the International Law Commission, delegations pointed out that in the past five years, the Commission had finalized three significant chapters of work: on reservations to treaties, the responsibility of international organizations, and the effect of armed conflicts on treaties.
Finalization of those three issues had made it possible for the Commission to close an important cycle and to begin anew, with the selection of several new topics, said the representative of Spain. In that regard, she urged the Commission, in the future, to concentrate on a limited number of topics during each five‑year period to be more efficient and effective, and to produce useful results.
Despite progress, particularly with regard to reservations to treaties and the responsibility of international organizations, Russia’s delegate said the Commission had been the object of criticism, including being too academic, engaging in lengthy discussions, and choosing topics regardless of the interests and concerns of United Nations States. While some criticisms were “overstated”, he agreed that the conclusion of topics pertinent to States should be the focus of the Commission. The Sixth Committee had indefinitely procrastinated on draft articles, illustrating the unwillingness of States to prepare conventions. He said this practice could complicate the progression of international law.
Likewise, the representative of Republic of Korea urged the Commission to be careful when adding new topics, ensuring that those topics were useful in dealing with the problems of today. While the five new subjects endorsed by the Commission for its long‑term programme of work were interesting, further examination was needed to realize the likely outcome of the Commission’s consideration.
The delegate of South Africa noted that since 1993, the Commission’s agenda had included the topic of reservations to treaties. It was within this historical context that he welcomed the adoption of the newly adopted Guide to Practice on the subject. This Guide was within the spirit and scope of the Vienna Convention on the Law of Treaties and would therefore assist States as they traversed the “complex maze of reservations”.
The Commission’s adoption of the 67 draft articles on the responsibility of international organizations was also notable, said India’s representative. Acknowledging the efforts of Giorgio Gaja for his work in that regard, she said the articles took into account the different nature, structures and functions of international organizations, while following the pattern of the articles on the responsibility of States for internationally wrongful acts.
Echoing the views of other delegates in the room, Canada’s delegate said it was difficult to contemplate suitable norms applicable to all international organizations. Unlike States, international organizations were not all conceptually similar and rules suited for large ones, like the United Nations, might not be suitable for smaller or regional organizations.
Also speaking today were the representatives of Austria, United Kingdom, China, Congo, Netherlands, Greece, Niger, Hungary, Malaysia and Argentina.
Also before the Committee was an informal letter from Judge Sophia Adinyira, President of the United Nations Appeals Tribunal, in response to the 13 October 2011 Sixth Committee Working Group on Administration of Justice. In the letter were requests for granting the Tribunal the category of Under‑Secretary‑General within the Organization and for the General Assembly to decide that the Convention on the Privileges and Immunities of the United Nations, Article V, Section 18(b), be applicable to Tribunal judges.
The Committee will meet again at 3 p.m., 26 October, to continue its debate on the International Law Commission report.
The Sixth Committee (Legal) met this morning to continue its annual consideration of the report of the International Law Commission with a focus on the introductory chapters, “the responsibility of international organizations” and “reservations to treaties”. For background on the report and themes, see Press Release GA/L/3420 of 24 October.
GREGOR SCHUSTERSCHITZ ( Austria) welcomed the draft resolution on a “reservations” dialogue, noting that Austria, monitoring bodies of human rights treaties and regional organizations engaged in such dialogue. They did so when a reservation did not permit a decision on whether the reservation was compatible with the object and purpose in question. He was also supportive of the draft providing for the establishment of a flexible mechanism for disputes settlement among States which were launching and objecting to a treaty reservation. This second proposed resolution, however, raised practical and legal questions, including those on the composition of the mechanism, and of the relations between such a mechanism and a competent treaty body.
As to the draft articles concerning the responsibility of international organizations, the General Assembly should take note of and annex them to a resolution and consider, at a later stage, the elaboration of a convention. This approach would test the applicability of the draft articles over time, as well as whether States and international organizations would accept them into their practice. Only after a review of this practice would it be possible to decide whether a convention would be worthwhile. The Commission should also further examine the issue of State responsibility versus the responsibility of international organizations during the breach of international law.
Concerning the proposal of five new topics for the Commission’s agenda, he said the inclusion of the topic “formation and evidence of customary international law” was welcome, particularly given the significant role customary law played in international relations. On the topic “protection of the atmosphere”, legal regimes set up in this regard had weaknesses and drawbacks, including their lack of ratification by major States. Any attempt by the Commission to take stock of present rules and to elaborate a new regime in this regard would therefore be commendable.
Regarding the “provisional application of treaties”, this issue had been the subject of various arbitrations but with sometimes different consequences in arbitral awards. The Commission should therefore shed more light on this issue. The subject of “the fair and equitable treatment standard in international investment law”, was, conversely, too narrow and specific for the elaboration of general rules, and therefore not ripe for codification. The topic “protection of the environment in relation to armed conflicts” was also not appropriate for codification, since it was closely related to the broader law on environmental protection.
In closing, he asked if previous topics on the Commission’s agenda would stay there or if they would be re‑examined in light of criteria for selection of new topics.
IAIN MACLEOD (United Kingdom), addressing the five new topics for future consideration by the Commission, said the study of the “formation and evidence of customary international law” might result in a short and practical guide, useful to both domestic and international judges, practitioners, government lawyers and non‑governmental organizations when grappling with certain provisions of treaties that constituted rules of custom. “Provisional application of treaties” was another possible new topic, as it was a term not defined in the Vienna Convention on the Law of Treaties. Because the mechanism of provisional application was increasingly being utilized, notably in European Union‑related treaties, he said that, rather than the production of a set of draft articles, a study of how Article 25 of the Vienna Convention worked in practice might be beneficial.
He expressed concern that the Commission might not be the appropriate body to undertake the topic of “fair and equitable treatment”. It was controversial within international investment law, and had been studied in the reports of the Organisation for Economic Cooperation and Development (OECD) in 2004 and the United Nations Conference on Trade and Development (UNCTAD) 1999. Further, he did not think the Commission had the competence to tackle the topics of “protection of the atmosphere” and “protection of the environment in relation to armed conflict” as they were highly technical issues.
He then turned to “responsibility of international organizations” and, noting that the Special Rapporteur, Giorgio Gaja, would be stepping down next year, thanked him for his twelve years of service. He then commended the General Commentary as a “vital aid” to applying the draft articles, and observed that it supported his country’s view that international organizations were not only different from States but presented “great diversity among themselves”. In this regard, he said he still harboured concerns about the application of the article on State Responsibility to International Organizations without giving full consideration to their differences. Before concluding and addressing “reservations to treaties”, he thanked Alain Pellet, Special Rapporteur, for his twenty years of service on this topic. He expressed doubt as to the need for a reservations assistance mechanism, noting the possibility of it detracting from a flexible and adaptable “reservations dialogue”, a term coined by the Special Rapporteur and one that was not prescriptive.
HUANG HUIKANG ( China) thanked the Commission for its work over the past year, but noted some problems. Certain topics, he said, had taken too much time and energy, while some outcome documents were too long and academic. The Commission should improve its working methods and enhance its efficiency, ensuring the practicality of its outcome documents while maintaining academic rigour.
He noted the five new items the Commission had recently added to its long‑term programme of work. Welcoming the study of those new topics, he said he hoped the Commission could benefit from the Sixth Committee’s comments in that respect and that the Committee could make a greater contribution to the codification and progressive development of international law.
Taking up specific focal topics of the Commission over the past year, he thanked Alain Pellet for his work on the Guide to Practice on reservations to treaties. While the Guide sorted out many theories and cases, some guidelines were of concern — for example, the approach of affirmative presumption adopted by guideline 4.5.3 was perhaps not compatible with the principle of State consent in treaty law. In addition, the Guide was too complex to be used in practice and the relevance of its provision for the establishment of a reservation assistance mechanism was doubtful.
On the responsibility of international organizations, he said he welcomed adoption of the relevant draft articles. Following upon the adoption of the draft articles on the responsibility of States, the draft articles under discussion represented another progressive step toward the codification and development of international law. Comments that had been submitted in accordance with the draft articles delineated between the responsibility of States and international organizations as well as among different international organizations. He said he was not convinced that uniform rules were applicable to all those entities. Noting the lack of practice in that regard, he said the international community had not yet reached consensus on the relevant rules of responsibility of international organizations. While imperfect, the draft articles sorted out practice, cases and literature and laid the foundation for further discussion. They should therefore be annexed, with their commentaries, to the relevant General Assembly resolution.
ERNEST TCHILOEMBA TCHITEMBO ( Congo), expressed his condolences on the death of Judge Antonio Cassese, saying he had had the honour to have been a student of the Judge in the 1980s.
He then turned to the topic of “reservations to treaties”, noting that the Guide to Practice was a step in the progressive development of international law. The Guide, while not legally binding in a strict sense, was a balanced document providing practical answers to technical questions and offered clear rules to different legal systems and rules between different State systems. In the relevant article, the confusing issue of the definition of “reservations” and “declarative interpretations” was clarified.
On the issue of collective acceptance of a non‑valid reservation, which was examined in the Commission’s report of last year, but not included in the finalized Guide, he said he wished it could have been addressed in another manner. He discussed the relevant articles on formulating an objection to a reservation to a treaty and guidelines for a time frame. He wondered whether an objection made outside the limits of 12 months would produce legal effects and under what circumstances.
He said his observations did not limit the relevance of the Guide; it was of great utility. As international law expanded, new problems within the international community were constantly emerging. In this respect, he believed the Guide to Practice would remedy the gaps of international conventions and instruments.
LIESBETH LIJNZAAD ( Netherlands), noted the passing of Judge Cassese and spoke of his tenure at The Hague and his engagement with the legal community, where he championed the need for reflection on ending impunity.
Turning to the working methods of the Law Commission, she said she supported the suggestion that the Commission should keep a record of its members’ attendance. On the topic of “reservation to treaties” she observed that the Guide to Practice had departed from its original aim of practical guidelines helpful in the daily work of government lawyers, officials of international organizations and members of supervisory bodies. However, the newly‑coined term, ‘reservation dialogue’, as a process to facilitate better understanding of the reservations and their impact, was a useful tool.
She said the proposal to establish an Observatory on Reservations with the Sixth Committee was, in her belief, “ill advised” given the informal character of the reservations dialogue. The consideration of a “dispute settlement on reservations” was “strange and unrealistic”, since there was no obligation to accept reservations, even if the Vienna Convention might suggest acceptance. The onus was on the reserving State to ensure that its reservation would be acceptable to other States, thus eliminating the need for a mechanism to settle differences of view. She did not agree that a late reservation could be deemed “accepted”, unless one State party objected to it. She said there was no practice to support this position.
On the topic of “responsibility of international organizations”, she noted some recent criticisms of the draft articles. These included the view that that there was too much variety among international organizations to justify one common set of articles on their responsibility; that the draft articles were too similar to the State responsibility articles without recognizing the difference between States and international organizations; and that there was not sufficient practice in this area. She pointed out that international organizations had a number of key characteristics in common. With regard to the draft articles on State responsibility, States, also, had great diversity, yet there was only one set of articles on their responsibility.
She said there had been an increase of legal activity with regard to international organizations, in particular relating to internationally wrongful acts. It was therefore vital to have a system in place, since such activity would continue to expand; national and international courts who were confronted with claims against international organizations and their members would benefit from general rules that were drafted in an “open and multilateral process”. However, it would not be wise for the General Assembly to propose the elaboration of a convention.
MAENGHO SHIN (Republic of Korea) noting that the International Law Commission had nine topics on its current programme, he recalled that an “overload” of the Commission’s agenda had been a cause of delays in the 1980s. The Commission should be careful about adding new topics, and must ensure that those topics were useful in dealing with the problems of today. The Commission should elaborate on the scope of the five subjects in its long‑term programme of work, which included “protection of the atmosphere”, and “fair and equitable treatment standard in international investment law”. While all the topics were interesting, further examination was needed, to produce some idea of the likely outcome from consideration by the Commission.
He commended the 20 years of service by the Special Rapporteur on “reservations to treaties”. The Guide to Practice, he said, implied two aspects, one being that codification was based on State practices and the other being the development of international law. The more important goals of international law on this topic were provided in the United Nations Charter and in the 1969 Vienna Convention on the Law of Treaties.
On the “responsibility of International Organizations”, he said that as multilateral diplomacy became more important, the issue of responsibility of international organizations was now a crucial issue in international law. Because States and international organizations were separate subjects of international law, a separate set of draft articles, modified and based on the draft articles on State responsibility adopted in 2001, would be appropriate. The practices of States and international organizations on this subject should be collected and analysed.
PHANI DASCALOPOULOU‑LIVADA (Greece), addressing the responsibility of international organizations, said that what made the establishment of draft articles on this subject “daunting” was the difficulty of encompassing the great variety of international organizations. Indeed, the “looser” type of organizations had to come under the same umbrella as, for example, regional organizations, such as the European Union. The draft articles on State responsibility had served as a prototype for this work. She was of the view, however, that an altogether different approach could have been followed, which focused on the types of organizations which could be identified and categorized according to their features and functions. In this way, each category could be dealt with separately, possibly making the draft articles more sharp and acute. She noted that if a normative text was eventually adopted, the existing commentaries on the articles would cease to be as prominent and compelling as they were now. Recalling the lack of State practice in this area, she called for codification of the draft articles to be postponed.
On specific, problematic draft articles, she referred to article 22 on countermeasures, particularly their use against third States and international organizations as well as Member States. Even if the use of countermeasures against Member States was expressed as conditional, dependent upon the rules of an organization, she said the provision of sanctions would be far more probable. Countermeasures should therefore be left out of the draft articles. Concerning article 40 on ensuring the fulfilment of the obligation to make reparation, she was not reassured that despite references to the rules of the organization, Member States could be insulated from subsidiary responsibility for reparation.
CONCEPCIÓN ESCOBAR HERNÁNDEZ ( Spain) began by paying tribute to the passing of Justice Antonio Cassese, whose death, she said, had left a significant vacuum and void in the international legal community.
She classified the current discussion on the International Law Commission report as a noteworthy one, since it was the culmination of the most recent five‑year period of the Commission’s work. During this time, the Commission had finalized three significant chapters: reservations to treaties, the responsibility of international organizations, and the effect of armed conflicts on treaties.
Finalization of those three issues, she said, had made it possible for the Commission to close an important cycle and to begin another, including the selection of several new topics and the opportunity to set priorities and to consider the views of the Sixth Committee and States. She said she was of the view that the Commission should concentrate on a limited number of topics during each five‑year period, to be more efficient and effective and to produce useful results. When selecting new topics, the Commission should consider both the criteria it had previously developed and State perspectives.
On reservations to treaties, she said the “sheer size” of the Guide to Practice reflected its value. In her opinion, the Sixth Committee could not at this time discuss the entirety of the Commission’s work on this subject, since the Guide required the detailed analysis of States. The Guide, she said, reflected the various issues related to problems both with reservations and objections to reservations, which might affect States. It could therefore become a reference mechanism for State decisions on whether to formulate a reservation to a treaty or to object to a reservation formulated by third parties.
Noting that formulation of reservations, or objections thereto, often led to an “open face‑off” between States and international organizations, she said the approach to formulation should be open. Such openness would ensure the integrity of treaties, promote flexibility and facilitate the maximum participation of States and international organizations in legal regimes established by those treaties.
As for the responsibility of international organizations, she said it was not always possible to transfer elements of State responsibility to rules governing responsibility of international organizations. The commentary to the draft articles on the matter reflected the unique features of international organizations. She agreed with the Commission’s recommendation that the General Assembly take note of the completed texts and later consider possible adoption of a treaty text. Considering the many positions expressed on the issue and the scarcity of relevant practice, a discussion on the matter should take place at a later time.
SANTOSH CHOWDHARY (India) commended the substantial progress made by the Commission in this past session, and congratulated both the Special Rapporteur, Alain Pellet, for the adoption by the Commission for the “Guide to Practice on Reservations to Treaties”, and the chairperson of the Working Group, Vasquez Bermudez. On the topic “responsibility of international organizations”, she acknowledged the work of Special Rapporteur Giorgio Gaja, and the adoption by the Commission of the 67 draft articles. She noted that, while taking into account the different nature, structures and functions of international organizations, the articles followed the pattern of the articles on the responsibility of States for internationally wrongful acts.
She commented on the specific provisions that characterized whether an act by an international organization was wrongful under international law, noting the relevant provision which safeguarded the application of special rules of international law that could be relevant, and also the provisions of the United Nations Charter. In this regard, an internationally wrongful act could create direct liability between an international organization and its member States, and in other instances could trigger indirect responsibility. These issues should be examined carefully.
On the issue of countermeasures, she reiterated her delegation’s view that disputes between an international organization and its members should be settled in accordance to the rules of the organization and through its internal procedures. She expressed support for the recommendation of the Commission to the General Assembly to take note of the draft articles in a resolution, and to consider at a later stage the elaboration of a convention based on those draft articles.
GARBA ABDOU ISSAKA ( Niger) said that the issues of “expulsion of aliens”, “immunity of State officials from foreign criminal jurisdiction” and “responsibility of international organizations” were all approached by different regimes and rightfully deserved an international legal regime that would be acceptable to all States.
With regard to the question of the “immunity of State officials”, he said the immunity of such officials was inextricably linked to the immunity from jurisdiction of the States in which they “embodied the will and body of the acts”.
He then turned to the topic related to the responsibility of international organizations for wrongfully committed acts resulting from the behaviour of the body of an organization or an agent of such an organization on the ground. The most common pattern of the abuse of privileges and immunities of these agents was recognized in the constitutions or agreements, in line with the laws and regulations relating to the work in the host country.
ALAN KESSEL (Canada) said the recommendations of the Working Group on the Commission’s working provided important and practical guidance, specifically: the idea that Special Rapporteurs would prepare a substantive report on their respective topics each year; that these substantive reports would be limited in length to no more than 50 pages; and that Special Rapporteurs would be available to attend a substantial part of each Commission session, provide a timely summary of the debate, and prepare concise draft commentaries. Enhancing and improving the Commission’s working methods was an important way of ensuring the continued relevance of its work. In that regard, the Commission should consider only taking on topics that could be completed within a five‑year period. Governments also had a role to play to enhance the Commission’s effectiveness.
Of the five new topics endorsed by the Commission for inclusion in its agenda, he was particularly interested in the Commission’s views on the formation and evidence of customary international law and on the protection of the atmosphere. In that context, he encouraged the Commission to consider the utility of producing a variety of outcomes such as guidelines and principles, other than just draft articles. A range of outcomes would provide States with the fullest set of options, and the best opportunity to take full advantage of the Commission’s expertise.
Focusing on two recent chapters of the Commission’s work, he said the 800‑page Guide on reservations to treaties represented a monumental effort, compiling the current vision of States and experts on this matter. On the responsibility of international organizations, he said it was difficult to contemplate suitable norms applicable to all international organizations. Unlike States, international organizations were not all conceptually similar and rules suited for large ones, like the United Nations, might not be suitable for smaller or regional organizations. To secure greater support from international organizations for draft articles, which reflected their unique circumstances, he encouraged the Commission to continue to reach out to them.
THEMBILE JOYINI ( South Africa) said that since 1993 the Law Commission had on its agenda the topic “reservations to treaties”. It was within this historical context that he welcomed the adoption of the Guide to Practice on the subject. This Guide was within the spirit and scope of the Vienna Convention on the Law of Treaties and would therefore assist States as they traversed the “complex maze of reservations, acceptance of reservations and objections thereto”. Speaking with appreciation for the practicality of the Guide, he pointed out some provisions which were ambiguous and somewhat unclear and conveyed the need to have commentaries available and accessible earlier, with the view to giving delegations enough time to properly work on their observation.
Noting that the current law on reservations closely followed the International Court of Justice advisory opinion on reservations to the Genocide Convention, he said it was necessary to strike a balance between the integrity of the treaty and the pursuit of universality. This balance was reflected in current law by the permissibility of, and restrictions to, reservations. He was uncertain, however, if the Guide’s condoning of a late reservation was meant to be progressive development of the Vienna Convention or a clarification of existing law. This provision placed the onus on other States to respond, when normally States were not obliged to respond to untimely reservations.
On the topic of the responsibility of international organizations, he said the legal personality of an international organization was not the same as the legal personality of a State. While the draft articles on State responsibility could be a point of departure for this topic, it was worth studying, in each particular case, whether it was necessary to reflect the peculiarities of the international organization. He endorsed the notion that the conduct of an international organization could be judged independently from that of its constituent members.
ISTVÁN HORVÁTH ( Hungary), while welcoming the Commission’s adoption of draft articles on the responsibility of international organizations and the effects of armed conflicts on treaties, also urged that issues which had been on the Commission’s agenda should be finalized.
Taking up the immunity of State officials from foreign criminal jurisdiction, he recalled the question of whether the Commission should set out rules of international law or embark on an exercise of progressive development in that context. In response, he said this required both approaches: first, setting existing rules of international law, contained in conventions concerning international crimes and then, after the codification of norms was finalized, engaging in progressive development.
The next question he addressed was which officials enjoyed personal immunity. He said he was of the view that Heads of States and Government and ministers of foreign affairs enjoyed full immunity. Nevertheless, if a State representative, other than the aforementioned, paid an official visit to another State, this person should be able to claim functional personal immunity for the benefit of international relations.
Speaking about how the obligation to extradite or to prosecute was applied by Hungary, he said that although there was no explicit reference to the principle in Hungarian law, relevant provisions could be found. For example, if a foreigner committed a crime in Hungary, or while aboard a Hungarian aircraft or vessel, transfer of prosecution was compulsory if Hungary waived its right to prosecution in an international treaty.
On the Commission’s selection of new topics, he said one of the selected issues, namely, the “fair and equitable treatment standard in international investment law”, did not fall under the narrow scope of public international law. It was therefore crucial to be cognizant of the fact that this topic be considered by other United Nations bodies, perhaps, the United Nations Commission on International Trade Law. It was vital that the Law Commission cooperate with these entities to capitalize on existing knowledge and shared experiences.
In closing, he addressed the newly adopted draft articles on the responsibility of international organizations. He said he supported the Commission’s approach of recommending the General Assembly take note of the draft articles, annex them, and at a later date consider the elaboration of a convention. The draft articles together with the articles on State Responsibility created a “regime of international responsibility”.
ZURSHIDA MURNI ABDUL HAMID ( Malaysia) said that Malaysia had provided its views with regards to “reservations to treaties” but noted that they were not included in the finalized text of the Guide to Practice. She then commented on several important issues regarding specific articles she wished noted. She said a treaty monitoring body should comprise independent experts and not representatives of Governments or countries. These experts should only make legal findings in order to enable the body to execute its powers without being politically influenced by Government representatives or countries.
The spirit of the guideline, she said, did not allow for the decision of a treaty monitoring body to deprive “reserving” States from making reservations, but rather they were there to assist reserving States to “craft their reservations to render them valid for permissibility”. The power to conclude treaties by international organizations largely depended on the terms of the constituent instrument of the international organization itself, and the mandate granted to that organization by its Member States. Thus, a separate legal regime for international organizations should be developed separately and not be made part of the guidelines at this time.
Turning to the “responsibility of international organizations” she called for more time for States and international organizations to evaluate and review the draft articles. It was also, in her view, premature to consider the elaboration of a convention based on the draft articles, especially since there was an absence of consensus on the elaboration of a convention on the “responsibility of States for internationally wrongful acts”.
HOLGER MARTINSEN ( Argentina), on the topic of “reservation to treaties”, said the work on this area deserved to be especially acknowledged as it formulated a comprehensive draft of guidelines with remarkable detail. However, he noted that some aspects of the mechanisms proposed, such as the “observatory” for reservations, required a deeper analysis in light of the need to preserve the integrity of international law. He urged this particular item to be considered fully in a future session of the Sixth Committee and that, in general, caution be taken with the creation of additional mechanisms, such as the “observatory” for reservations.
On the draft articles of the “responsibility of international organizations”, he reiterated comments of other delegations for the need to take into account the “heterogeneity” of international organizations. However, he noted the value of the Law Commission examining the common elements shared by international organizations with regard to international responsibility vis‑à‑ vis States and other international organizations. He also noted that several international organizations seemed to be aware of such “commonalities” with States.
He spoke of “countermeasures” and the concepts in the relevant paragraph of the commentaries, emphasizing that the application of those specific principles governing the responsibility between States and the relations between international organizations and non‑Member States required “prudent examination”. The principle had obvious implications and needed to be considered in its whole dimension. Further, the limits of competency of international organizations needed specific consideration; the differences between States and international organizations must be kept in mind.
GENNADY KUZMIN ( Russian Federation) observed that the Law Commission had been the object of criticism, including, among other comments, being too academic, engaging in discussions that were too lengthy, and choosing topics regardless of the interests and concerns of United Nations States. While some criticisms were overstated, he did note that some were valid. A more open dialogue between the Commission and the Sixth Committee was of utmost importance and one that might require a “solid platform”, thus increasing effectiveness between the two bodies and strengthening the rule of law as well.
Today, however, too many projects of the Commission had not found their “logical continuation” and were not becoming legally binding texts, he said. The conclusion of topics should be the focus of the Commission. He also noted that the Sixth Committee put off draft articles indefinitely, illustrating the unwillingness of States to prepare conventions on draft articles. This could complicate the progression of international law. In light of these circumstances, he said the work of the Commission should focus on relevant topics aimed at legal adoption of international instruments.
Turning to new topics under consideration, he said the issue of “customary law” was very important in relation to law enforcement, since there was no unified understanding of the issue. A recommendation by the Law Commission could be extremely useful and such reliable guidelines would “lighten the load” of courts and lawyers whose job was to implement customary law. Any work on topics such as this would require consideration by the Sixth Committee.
Continuing, he stated that the 20 years of work on “reservations to treaties” by the Special Rapporteur, Alain Pellet “truly commands respect” and he hoped the Guide would be widely recognized and become a useful tool for responding to the issue of reservations to treaties as it addressed issues not dealt directly by the Vienna Convention.
As for “responsibility of international organizations”, he acknowledged the progress made in the draft articles fully in line with the logical structure and practice of the draft articles on State responsibility adopted in 2001. It was debatable whether an international organization could be provided with powers that were only given to States, such as the right to self‑defence.
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