Fifty-seventh General Assembly GA/L/3226
Sixth Committee 6 November 2002
26th & 27th Meetings (AM & PM)
PROBLEMS OF UNITED NATIONS MISSIONS IN NEW YORK REVIEWED
AS LEGAL COMMITTEE TAKES UP HOST COUNTRY REPORT
Travel Restrictions, Parking Rules Among Issues Raised;
U.S. Delegate Says Efforts are Made to Facilitate Work by Diplomats
The issues of travel restrictions on some United Nations missions and problems related to the parking of diplomatic vehicles were discussed this afternoon as the General Assembly’s Sixth Committee (Legal), at the second of two meetings today, took up the report of the Committee on Relations with the Host Country.
Earlier the Committee concluded its consideration of the report of the International Law Commission on the work of its fifty-fourth session. The Committee also dealt with a resolution and two decisions.
Speaking on relations with the host country, representatives referred to a new diplomatic parking programme that had gone into effect on 1 November.
Denmark’s representative, speaking on behalf of the European Union and associated States, said the diplomatic missions of New York could not function efficiently when hindered by insufficient parking capacity. The issues related to the diplomatic parking programme should be kept under review, particularly regarding its compatibility with international law. Questions about the issuance of visas and movements of staff of certain countries within the United States should be settled in conformity with the Host Country Agreement.
While acknowledging the host country’s right to control entry into its territory, and to ensure its national security was acknowledged, some speakers emphasized the responsibility of the host country to abide by the Headquarters Agreement. They said participation of delegations in the work of the United Nations and the functioning of its missions should not be undermined. The host country should show flexibility and reconsider the necessity of subjecting visiting dignitaries and to stringent and embarrassing security checks.
Sierra Leone’s representative called on the United States authorities to educate airport personnel about treatment of senior diplomats arriving or departing the country. He said an ambassador of his mission had been disrespected, forced to take off his shoes and jacket despite his diplomatic status. He said courtesies extended to foreign diplomats in his country must be reciprocated.
The representative of the United States, as host country, recalled that the United Nations Legal Counsel had rendered a legal opinion on the new parking programme, saying it was consistent with international law and the host country’s obligations. That had not been surprising, since the concerns and preferences of the New York diplomatic community had been taken into account in developing the programme with the City of New York. The United States Mission would ensure that the programme was implemented as written. It would undertake periodic reviews of effectiveness and fairness.
On the matter of travel restrictions, he said the United States provided mission members and delegations with unimpeded access to the Headquarters district. The restrictions did not interfere with travel for United Nations business.
Also speaking on the matter were the representatives of Costa Rica (on behalf of the Central American countries of the Rio Group), Viet Nam (on behalf of the Association of South-East Asian Nations (ASEAN)), Libya and Russian Federation.
A representative of Cyprus introduced the report on the Committee on Relations with the Host Country. Another representative of Cyprus introduced a draft resolution on it.
In the concluding debate on the Law Commission’s report, the focus was on the final chapters dealing with unilateral acts of States; international liability; responsibility of international organizations; fragmentation of international law; and other decisions, including new topics. The issues of State liability for internationally wrongful acts and fragmentation of international law were high on speakers’ agendas.
A representative of the International Federation of Red Cross and Red Crescent Societies said the legal system must respond to changing needs despite challenges arising from uncontrolled expansion of international law. In 2001, the Federation had begun a study of existing legislation and field practice relevant to international disaster response. It would be published in early 2003.
Robert Rosenstock, Chairman of the International Law Commission, delivered a concluding statement on the Committee’s consideration of the report. He repeated the request for governments to submit responses to questionnaires on unilateral acts of States. He also stressed the importance of input from governments in the form of legal arguments, drafting suggestions or evidence of State practice.
Also speaking this morning on the Commission's report were the representatives of Slovenia, India, Nepal, Poland, Greece, Slovakia, Algeria, Australia, Hungary, Venezuela, Cuba, Republic of Korea, Turkey, Argentina, Nigeria and Chile.
The Committee approved a draft decision that would have the Assembly defer consideration of granting observer status in the General Assembly to the International Institute for Democracy and Electoral Assistance.
Arpad Prandler (Hungary), Chairman of the Sixth Committee (Legal), introduced a draft decision on an international convention against the reproductive cloning of human beings. On behalf of the Bureau, Canada’s
representative introduced a draft resolution on measures to eliminate international terrorism.
The Committee will meet again at 10:00 a.m. tomorrow, Thursday, 7 November, to continue considering the report of the Committee on Relations with the Host Country, and to take action on a number of draft resolutions.
The Sixth Committee (Legal) met today to continue its debate over the report of the International Law Commission on the work of its fifty-fourth session (document A/57/10 and Corr.1). The focus was to be on the final chapters covering unilateral acts of States; international liability; responsibility of international organizations; fragmentation of international law; and other decisions, including new topics. (For more details on the Commission's report, see Press Release GA/L/3220 of 28 October.)
The Committee was also expected to take up the report of the Committee on Relations with the Host Country (document A/57/26), and receive a related draft resolution.
In addition, the Committee was expected to hear the introduction of a draft on international terrorism. A decision was expected on a draft relating to observer status with the General Assembly for the International Institute for Democracy and Electoral Assistance.
Report of Host Country Committee
The report of the Committee on Relations with the Host Country (document A/57/26) contains an account of discussions held in the Committee on a variety of issues, as well as the Committee’s recommendations and conclusions.
Topics considered by the 19-member Committee during the reporting period included the question of the security of missions and the safety of their personnel, and the responsibilities of permanent missions to the United Nations and their personnel, in particular the problem of claims of financial indebtedness. Other issues covered included the question of privileges and immunities, and the use of motor vehicles, parking and related matters.
In its recommendations and conclusions, the Committee reaffirmed the Headquarters Agreement and the provisions of the 1961 Vienna Convention on Diplomatic Relations and the 1946 Convention on the Privileges and Immunities of the United Nations. It considered that the maintenance of appropriate conditions for the delegations and the missions accredited to the United Nations was in the interest of the United Nations and all Member States, and expressed appreciation for the efforts made by the host country to that end. Noting that the observance of privileges and immunities was an issue of great importance, the Committee emphasized the need to solve, through negotiations, problems that might arise for the normal functioning of the delegations and the missions accredited to the United Nations.
The Committee requested the host country to continue to bring to the attention of New York City officials reports from the diplomatic community about cases of discriminatory treatment against diplomats, and to promote compliance with international norms concerning diplomatic privileges and immunities. It also requested the host country to bring to the attention of the City’s authorities the positions expressed on the “Parking Programme for Diplomatic Vehicles” by members of the Committee and other Member States.
The Committee again urged the host country to remove the remaining travel restrictions on personnel of certain missions, and staff members of the Secretariat of certain nationalities, as soon as possible. It stressed the importance of permanent missions, their personnel and Secretariat personnel meeting their financial obligations.
The Committee on Relations with the Host Country was established by General Assembly resolution 2819 (XXVI) of 15 December 1971. Non-members of the Committee participate in its work as observers.
The Committee was expected to receive and act upon a draft decision on observer status in the General Assembly for the International Institute for Democracy and Electoral Assistance (document A/C.6/57/L.26). By that draft, the General Assembly would decide to invite the institute to participate as an observer in its sessions and work.
[The institute is an intergovernmental organization, based in Stockholm, whose objectives include promoting and advancing sustainable democracy worldwide. It also promotes transparency and accountability, professionalism and efficiency in the electoral process.]
The organization’s application for observer status was first considered in the Sixth Committee during the fifty-sixth session of the General Assembly. Action on the request was deferred to the current Assembly session.
A draft on measures to eliminate international terrorism (document A/C.6/57/L.22) was expected to be introduced. By its terms, the Assembly would urge States to consider, as a priority, becoming parties to the relevant conventions and protocols dealing with aspects of terrorism. It would urge them to cooperate at every level in ensuring that technical and other expert advice was provided to those States that requested assistance in becoming parties to the above conventions and protocols.
It would urge States and the Secretary-General to make use of existing institutions of the United Nations in efforts to prevent terrorism, and would decide that the Ad Hoc Committee on the subject should continue to elaborate a comprehensive convention on international terrorism as a matter of urgency. The Ad Hoc Committee would also continue elaborating a draft international convention for the suppression of acts of nuclear terrorism and would keep on its agenda the convening of a high-level conference under auspices of the United Nations to formulate a joint international response to terrorism. Finally, it would decide that the Ad Hoc Committee would meet in March 2003 to continue its work.
By a draft resolution to be introduced on the report of the Committee on Relations with the Host Country (document A/C.6/57/L.25), the General Assembly would take note of the United Nations Legal Counsel’s opinion concerning the parking programme for diplomatic vehicles and the requests by delegations to defer implementation of the programme. It would also take note of the host country’s commitment to maintain appropriate conditions for the functioning of delegations and missions. It would note that travel controls imposed by the host country on staff of certain missions and staff remained in effect and would request the host country to consider removing them. Finally, the Assembly would also note that the Committee anticipated that the host country would ensure the issuance of entry visas to representatives of Member States in a timely manner.
Observer Status Decision
When the Committee met, the representative of Sweden withdrew the text on observer status in the General Assembly for the International Institute for Democracy and Electoral Assistance (document A/C.6/57/L.23) and introduced a draft decision on the same subject (document A/C.6/57/L.26), by which the Assembly would defer consideration of the matter on the recommendation of the Sixth Committee (Legal).
The Committee waived the rule requiring a period of twenty-four hours between the introduction of a draft and action on it, and approved the draft decision without a vote.
Introduction of Terrorism Draft
Canada’s representative introduced the draft resolution on measures to eliminate international terrorism (document A/C.6/57/L.22), submitted on behalf of the bureau.
MIRJAM SKRK (Slovenia) said it would be useful if the International Law Commission, exceptionally, considered the possibility of eventually making the commentaries to guidelines an integral part of the Guide to Practice in Respect of Reservations to Treaties. She said the draft guidelines on reservations adopted by the Commission seemed well balanced. It took account of respect for the treaty-making autonomy of the reserving State, on one hand, and on the other the interests of other contracting parties and the international community as a whole. Nevertheless, her delegation regretted that the reservations to bilateral treaties did not constitute a reservation within the meaning of the present draft Guide to Practice. A reservation to a bilateral treaty by a party required examination and action on behalf of the other contracting party, particularly if it intended to keep the treaty in question alive.
On diplomatic protection, she said her delegation believed that the functional protection by international organizations of their officials, and the right of the State of nationality of a ship or aircraft to bring a claim on behalf of the crew irrespective of their nationality, went beyond the scope of the subject. She said that more study should be carried out on the question.
With respect to nationality of legal persons, her delegation did not favour the idea of a State of nationality of shareholders having the right to provide them with diplomatic protection. It was true that some jurisprudence already existed on that but, nevertheless, the Commission should address the question with great care. Slovenia believed that a State of the habitual residence of stateless persons and refugees might exercise diplomatic protection on their behalf against a third State.
MANIMUTHU GHANDI (India) said he was satisfied with the guidelines providing that the form of a reservation and its formal confirmation must be made in writing. The guideline on formulation of interpretative declarations did not prescribe any form. In his view, such declarations, whether simple or conditional, needed to be in writing.
Reviewing the guidelines, he turned to the topic of unilateral acts. He said the Commission’s discussion had covered important issues and remained inconclusive. The debate on whether unilateral acts were political or legal in nature, and who should have the capability to formulate unilateral acts, was open. The topic was different from more traditional concepts, involving progressive development rather than codification. Since every unilateral act was not formulated to create a legal obligation or the expectation of it, a mechanism by which an inference of a legal obligation could not be provided. The Special Rapporteur should first concentrate on those unilateral acts from international practice that culminated in obligations. That approach would provide a way to the development of new concepts and the fruitful completion of the project.
On the topic of international liability, he said he welcomed the establishment of a working group on the matter. Also, the scope of work at the preliminary stage should cover the same area as that in the topic of prevention. A threshold would have to be determined, to trigger the application of the regime in allocating the loss caused. Any such regime should involve States, operators, insurance companies and pools of industry funds. Operators should bear the primary responsibility, as it was the operator that benefited and not the State. Third party involvement would have to be kept in mind. International precedents should be studied to determine the role of the State under the liability regime.
RAM BABU DHAKAL (Nepal) recalled that the Commission had completed work on two important issues, one on the State responsibility for internationally wrongful acts and the other on preventing trans-boundary harm from hazardous activities. He noted that considerable progress had also been made on reservations to treaties, diplomatic protection and unilateral acts of States. The initiation of work on the four additional topics was also welcome. His delegation would respond to the thematic issues on which the Commission had indicated an interest in receiving the views of Member States.
He said he shared the Commission's view that reservations must be formulated in writing. On the issue of unilateral acts of States, new draft articles had been presented on the rules of interpretation as general and supplementary means of interpretation. The complex matter required careful consideration. The Commission could first formulate rules common to all unilateral acts and then focus on specific rules for particular categories of unilateral acts.
On international liability, he said it was encouraging that the Commission had resumed work on the liability aspect and on the interrelationship of prevention and liability. The working group had recognized the need to strike a balance between the need to take action and the necessity of providing relief from harm done despite preventive measures. The work on the fragmentation of international law should strengthen international law, its rules, regimes and institutions. A seminar should be held to gain an overview of State practice, provide for a dialogue and achieve harmonization. The question of honoraria should be revisited to ensure that the research work of the Special Rapporteurs was not adversely affected by budget cuts.
GENOWEFA GRABOWSKA (Poland), speaking on “Unilateral acts of States”, said that specific provisions of the 1969 Vienna Convention, which had been tested in practice, might be reflected in future codification on the subject. That applied in particular to such areas as international and domestic effects of unilateral acts and bona fide fulfilment of a unilateral obligation. She said that certain areas regulated by the Convention might not be applicable to unilateral acts -- namely, conclusion and entry into force, termination and suspension. She said that because of their flexibility, unilateral acts played an increasingly important role in many fields of international cooperation.
As international law did not provide specific formal requirements in respect of unilateral acts, no strict procedural requirements should apply to such acts, she said. Formal requirements should also not hinder the achievement of their objectives. In general, she said that similar rules should apply to the interpretation of unilateral acts as to the one applicable to the interpretation of treaties, both contained in the 1969 Vienna Convention (articles 31-33) and customary law.
As unilateral acts contributed to making international cooperation more efficient, she said, it could be assumed that their practical application would become more and more common. As a result, unilateral acts were likely to become yet another source of international law in addition to treaties, customs and resolutions of international organizations. As to doubts on the direction and contents of the work on the topic, she said it would be a good idea for the Commission to establish a set of minimum standards of conduct governing unilateral acts which could be part of international law and practice. Adoption of guidelines on unilateral acts by a United Nations General Assembly resolution might be advisable to provide a set of non-binding rules that States could rely upon.
MARIA TELALIAN (Greece), speaking on “reservations to treaties”, said she agreed with the formulation mode of communication of reservations adopted by the Commission. Greece also agreed that communication made by electronic mail or facsimile should be confirmed by writing. It was greatly interested in the role of treaty-monitoring bodies, particularly those in the human rights area.
The competence of those bodies to pronounce on the validity of a reservation, and the consequences of a finding that a particular reservation was “impermissible” or “inadmissible”, depended on the nature of the monitoring body and the powers assigned to it by the treaty. Greece believed that the system of objections and acceptances provided for in the Vienna Convention on the Law of Treaties was also relevant, and might offer valuable support to the monitoring body in its interpretation of the compatibility of a reservation.
On “international liability”, she said that the elaboration of international rules on the topic was an important development of international law. Greece welcomed the Commission’s decision to resume the consideration of the issue of liability, and agreed that the activities to be covered should be the same as those included in the draft articles on prevention. She said the Commission should also address the question of liability for harm caused beyond national jurisdiction.
She said the proliferation of rules, actors and institutions, while being a positive development for international law, could generate at the same time divergences which might erode the cohesion and unity of international law. The situation called for coordination or harmonization and cooperation between the various institutions and actors. The Commission could make a valuable contribution by carrying out a thorough analysis of existing problems, and by offering practical solutions. She also addressed the topic of “responsibility of international organizations” and indicated that Greece strongly favoured the adoption of an international convention for State responsibility with appropriate dispute settlement procedures.
METOD SPACEK (Slovakia) said it was ambitious of the Commission to plan on completing the first reading of "responsibility of international organizations" during its current mandate. On the other hand, four years should be enough for the Commission to produce a series of studies on "fragmentation of international law". The Commission should address the difficulties arising from diversification and expansion of international law.
The adoption of the draft articles on "diplomatic protection" was welcome. The first article on “definition and scope” was more a definition than a provision on scope. Diplomatic protection was the discretionary right of a State to adopt the cause of its national, when an injury was caused by an internationally wrongful act. Three conditions should exist for diplomatic protection to come into play: the wrongful act must be by a State different from that of nationality; injury must have come from the act and the injured person must be a national of a State intended to exercise the diplomatic protection.
In that light, he said, the proposed diplomatic protection exercised in respect of non-nationals was an effort in progressive development of international law based on human rights considerations. Caution should be exercised. Diplomatic protection should not be transformed into a human rights tool. The Commission was right to have limited the scope of its study on diplomatic immunity.
Commenting on "reservations to treaties", he said the principle of legal certainty required that all actions on reservations should be performed in due and written form. While it was acceptable that the reserving State or organization must take some action following the finding of impermissibility, it was doubtful that the finding created an obligation to withdraw the reservation. That was just one option for remedying the situation. Withdrawal from a treaty altogether was another. Also, "unilateral acts" did not seem to lend itself to codification, rigid rules should not be elaborated on "international liability" and "responsibility of international organizations" should include consideration only of intergovernmental organizations.
ALI HAFRAD (Algeria) said the "responsibility of international organizations" should be excluded from the guidelines. Since occupation of a territory was illegal, it should not be the legal basis for guidelines on diplomatic protection. In the draft articles dealing with the question of whether exhaustion of legal remedies was a substantive or procedural matter, the question was irrelevant. Some remedies had no chance of producing a satisfactory remedy. Therefore, domestic remedies should not need to be exhausted, unless they offered promise. Also, the true value of each case should be considered with regard to implicit renunciation, since silence did not necessarily mean consent. Care should be taken with regard to the issue. On questions related to protection of a ship, the law of the sea convention covered the matter. The principle of nationality was the bedrock of "diplomatic protection". Broadening the right of States to intervene would dilute it.
He said the role of the depositary in the case of inadmissible reservations must be studied carefully. The Vienna convention had left it up to States to decide whether reservations were inadmissible. With regard to State responsibility, the burden of losses should be shared, mainly by those who had taken part in the activity and had profited. The lead agent who had control over activities should be the principle in calculations of losses. Also, "fragmentation of international law" was a topic different from others. While such fragmentation had negative aspects, it also conveyed the vast richness of legal regimes. The scope of international law should be broadened.
KYM TAYLOR (Australia) said her country welcomed the Commission’s decision to establish an open-ended informal consultation on the important topic of “unilateral acts of States”. An area of particular interest to Australia was the issue of reciprocity and whether a State that had unilaterally made a promise could be legally bound without expecting reciprocity on the part of any other State. Australia would be anxious to preserve the enforceability of a unilateral act as international law, without the need for any element of reciprocity. It agreed with the majority of members and the Special Rapporteur that unilateral acts existed under international law and could be binding on the author State, subject to certain conditions of validity.
She said Australia welcomed the Commission’s decision to add three new topics to its programme of work, namely, the responsibility of international organizations, fragmentation of international law and shared natural resources. It particularly welcomed the establishment by the Commission of a working group to look into the topic of shared natural resources. Australia viewed the topic as especially important in the context of the management of fisheries resources, and hoped it would help in outlining the obligation of States to cooperate, including through actions such as combating illegal, unreported and unregulated fishing which threatened endangered species.
CSABA SIMON (Hungary), speaking on “international liability”, said harm in that context could occur despite faithful implementation of duties or preventive measures for a number of reasons. Sometimes the risk that resulted in harm was not identified at the time the harm occurred, and appropriate preventive steps could not be taken. In the case of harm occurring despite compliance of States with duties, international liability would arise. It should be kept in mind that States should be free to permit desired activities on their territories despite the fact that transboundary harm could occur. Therefore, some form of relief such as compensation should be ensured. The question should be pursued from the perspective that all actors in an operation should share in the loss resulting from such situations.
He said the scope of activities covered by the issue should be same as those in the prevention of transboundary harm from hazardous activities. On the threshold, the trigger for applying the regime should not be higher in the case of State liability than the “significant harm” according to international law. In principle, the innocent victim should not be left with loss. However, deliberations should consider the question of whether the victim had taken every reasonable step to decrease the consequences and minimize the damage. The operator should bear the primary liability and its share of loss should involve costs it needed to bear in containing the loss and making restorations and reparations. Other considerations, such as third party involvement and unforseeability of the harm, would need to be kept in view. Also, the operator’s liability could not exceed the limits of insurance or the resources necessary to remain an actor. The State would need to assume the rest. Therefore, it was vital to define the rules of liability for all actors, especially for States.
With regard to “unilateral acts of States”, he said it was important to codify and take into account the characteristics of the range of such acts. Discussions on shared natural resources should continue in depth, keeping in mind that the completion of deliberations on the confined ground water issue could be a useful basis for further considerations.
ANGELA CAVALIERE DE NAVA (Venezuela) agreed with the Special Rapporteur on “diplomatic protection” that the draft articles should not be expanded to cover other situations. She supported diplomatic protection for stateless persons and refugees, but emphasized that it should not mean the granting of nationality. She hoped that the “Calvo clause” -- the right to waive diplomatic protection -- would not be abandoned. It was an important institution of international law, she said. The exhaustion of domestic remedies must be dealt with carefully. She trusted that the Commission would continue to make progress in the elaboration of the draft articles on diplomatic protection.
On “unilateral acts of States”, she said uniform standards were needed to govern such acts. She called for a definition of “unilateral acts”. She hoped Governments would submit information on State practice on the topic as requested by the Commission. The Commission’s work on “responsibility of the international organizations” must be confined to intergovernmental bodies, she said. A study on their structure and how they operated would be helpful. She said she was pleased about the progress being made in the area of “international liability” after the Commission’s conclusion of work on prevention. She shared the view of the working group on the topic that the focus should be on harm to individuals and to the environment.
SORAYA ALVAREZ NUNÊZ (Cuba) said her delegation attached particular importance to the Commission’s work on “diplomatic protection”. She said the Commission must confine itself to issues related to nationality and damage to the environment. She drew attention to the abuses inherent in the application of diplomatic protection, adding that expanding the scope of the study would be counter-productive. As a general rule, she supported the Commission’s view that diplomatic protection should be applied in a discretionary manner.
She said no study of diplomatic protection would be complete without consideration of the “Calvo Clause”, an instrument now accepted internationally. She regretted that the draft article covering the issue had not been referred to the Commission’s drafting committee. On “reservations to treaties”, she said certain criteria adopted in the draft guideline must be brought into line with the 1969 Vienna Convention. The question of incompatibility or otherwise of treaties should be left for State parties alone to determine, and not relegated to the depositary of the treaty.
She expressed appreciation and gratitude for the work of the Commission’s Special Rapporteur on “unilateral acts of States”. She urged codification of the draft articles on the topic, adding that the juridical consequences of unilateral acts must be studied. Any draft on the matter should include rules that such acts would be subject to challenge. There should be a study on what had been done within the Commission with regard to practice. On “fragmentation of international law”, she said that from a practical point of view the study should be dropped.
JAESOON HAHN (Republic of Korea) said the draft guidelines on “reservations to treaties” and the accompanying commentaries were acceptable. Of key concern was the function of the depositary relating to manifestly impermissible reservations. Reviewing the draft articles concerned with the matter, she said a main concern was the possibility that the depositary would get involved in the unwarranted debate with the reserving State as to whether the reservation was compatible with the object and purpose of the treaty. The neutral position of the depositary could be compromised, and therefore it should play a strictly procedural role in compliance with the Vienna Conventions.
On other aspects of the guidelines, she said that while electronic forms of communications about reservations were not the normal practice in her country, it was possible those forms could prove useful in modern times. The “body monitoring the implementation of a treaty” should be clarified. She asked if it meant a treaty body with certain regulatory functions only, or did it also imply all bodies having the competence to find a reservation impermissible/inadmissible, including an independent judicial body such as the International Court of Justice. A distinction should be drawn between a treaty body empowered with judicial functions and one devoid of such power. In her view, a treaty body should not be allowed to decide on the permissibility of reservations. The power should rest with the States or international organizations that were contracting parties.
Finally, she said, there was lack of agreement on an approach to “unilateral acts of States”. Before elaborating a general rule, it could be useful to study the types of acts individually, such as promise, recognition, renunciation or protest. And on the matter of international liability for acts not prohibited by law, she said the complicated issue was a very important one on which the work should be carried out as it had on the draft articles adopted last year on transboundary harm from hazardous activities.
TEOMAN UYKUR (Turkey), speaking on “international liability”, agreed with the working group, on the principle that States should be reasonably free to permit desired activities within their territory or under their jurisdiction or control. On the scope of work on the topic, he said activities covered at this stage should be the same as those included within the sub-topic of prevention of transboundary harm from hazardous activities. It also seemed to him to be a useful approach to cover the loss to persons, property and the environment within the national jurisdiction and beyond.
He said it was clear that States had an indispensable role in designing appropriate liability schemes aimed at equitable loss allocation. That point was particularly relevant in cases where private liability might be insufficient to cover the entire damage caused.
He cautioned against certain previous instruments being taken as reference points in the Commission’s current work, in view of the fact that those instruments had not been accepted by a large part of the international community. He had in mind the Convention on the Non-Navigational Uses of International Watercourses of 1997. He said that instrument should not be taken as a basis in the Commission’s work, either on the topic of “international liability” or in the new topic of “shared natural resources”.
RICARDO BOCALANDRO (Argentina) said that on the issue of “international liability”, the concept of burden-sharing was a fruitful approach. There should be consistency among the draft articles. The Commission should be extremely careful when dealing with rules involving international private law. There should be no departure from the clear-cut ruling that the International Court of Justice had handed down in the Barcelona traction case, in which the State of the nationality of shareholders was considered but only when they were directly injured or when the company would have lost the ability to operate. Also, it should be kept in mind that diplomatic protection continued to apply even in situations when those who had suffered injury shared in the liability.
Reviewing the issues of shared natural resources, fragmentation and responsibility of international organizations, he said they were all important areas for study. The latter should not be extended beyond the scope of intergovernmental organizations. He said he supported the working groups on diplomatic immunities.
NDEKHEDEHE NDEKHEDEHE (Nigeria) said the guide on “reservations to treaties” should remain as a guide, and not be seen as a body of binding rules. The issues of withdrawal and modification were crucial. The guide should embody treaty rules that were both customary and acceptable. Also, the trend toward decreasing use of reservations to treaties in the domain of human rights was gratifying. With regard to the role of a treaty-monitoring body in relation to the impermissibility of reservations, it was doubtful any such finding would be binding on States without their consent. Further, such findings or recommendation could not be acted upon by States. The proposal should be excluded from the guide and the issue further elaborated later.
He said the functions of the depositary should not go beyond transmitting reservations to ensure neutrality and impartiality. He supported the proposal on communicating a reservation by electronic means, followed up by diplomatic note or depositary notification. However, there should be a provision to the effect that the electronic communication would only be considered as having been made if there were no dispute about its authenticity. That issue remained to be elaborated.
Finally, he said, “fragmentation of international law” was a natural consequence of its expansion. The development was inevitable but the proliferation of international legal judicial institutions, rules and regimes was not unhealthy or unnecessary for the progressive development of international law. On the contrary, it was a healthy indication of its vitality and versatility. It was expected that the Committee would assist international judges and practitioners to cope with the consequences of the fragmentation as the Commission studied the matter further.
Introduction of Draft on Cloning
ARPAD PRANDLER, Chairman of the Sixth Committee (Legal), introduced a draft decision on an international convention against the reproductive cloning of human beings (document A/C.6/57/L.24). By that draft, the Assembly would welcome the work of the Ad Hoc Committee on the matter. It would also decide that a working group of the Sixth Committee (Legal) would be convened from 29 September to 3 October 2003 during the next session of the General Assembly to continue the work that had begun this year.
When the Sixth Committee met again this afternoon, PEDRO ORTUZAR (Chile) spoke on "diplomatic protection".
He said a provision of the United Nations Convention on the Law of the Sea (article 292) referred to the prompt release of ships and their crew in cases of detention. The request for release could only exercise by a State of nationality of those vessels and crew. That procedure was inherent in the relevant international law. It did not specifically entail the invocation of diplomatic protection.
On "reservations to treaties", he said the functions of the depositary should be limited to the formally stipulated role. Substantive questions should be left to States parties to the treaty. His delegation agreed to the mode of communication of reservations as provided in the draft articles. The reservation must be formulated in written form with the date sent. The powers of the depositary in respect of inadmissible reservation should be exercised in a limited manner.
On the topic of "unilateral acts" he said the 1969 Vienna Convention should be the benchmark in the elaboration of the draft articles. The jurisprudence of the International Court of Justice should also be a guide. Work on responsibilities of international organizations should be limited to intergovernmental organizations. Extending it to other bodies would be inappropriate, he said.
VICTORIA BANNON, Co-ordinator, International Disaster Response Law Project, International Federation of Red Cross and Red Crescent Societies, said she was aware of the challenges that could arise from uncontrolled expansion of international law. However, it was important that the legal system be responsive to the changing needs of the international community. Since the Federation worked in many different regions and countries of the world, it had become aware of a worrying lack of clarity about what the law actually was, how it was administered and how it was implemented. That caused uncertainty, slowed down emergency response and cost lives.
As a result, she said, in February 2001 the Federation had undertaken a study of existing legislation and field practice relevant to international disaster response. In the context of the Commission’s study on fragmentation of international law, it should be noted that the project was not seeking to develop a new law. Rather, it was engaging in the collection and detailed analysis of all existing international law relating to natural disaster. The objective was to improve the capacity of responding to emergencies, and to natural disasters in particular, in a manner that maximized abilities and minimized threats to vulnerable populations.
The compendium would be published early in 2003, she added. The Federation would therefore be able to prepare for a detailed consideration of future work on the important matter at its December 2003 International Conference.
She said preliminary analysis of existing treaty law indicated a complex network of predominantly bilateral treaties to facilitate humanitarian assistance in times of disaster. The role of international organizations or other non-State actors in the response was unevenly covered. Yet one government had indicated more than 90 bilateral treaties in its own inventory that touched up the matter. Obviously there was a great need to identify primary needs and achieve consistency. When those issues came up at the 2003 Conference, it was desirable that relevant actors take a well-informed part in it.
Concluding Remarks by Commission Chairman
ROBERT ROSENSTOCK, Chairman of the International Law Commission, speaking after the conclusion of the discussions on the Commission’s 2002 report, said the annual debate served as an opportunity both for the Commission to receive policy guidance, and for an exchange of views between the two bodies. Its usefulness could not be overemphasized, as it was the key to the Commission preparing draft instruments purporting to codify and/or progressively develop international law that were well-grounded in State practice and political acceptability.
While careful note had been taken of the oral statements made in the Sixth Committee, he said, the Commission found it particularly useful to have comments in writing. He repeated a request made by his predecessor last year that delegations also consider submitting responses to the questionnaire on “unilateral acts of States”. He expressed regret that the Commission did not receive as much written input from the member Governments as it would like.
The disturbing trend was not without its risks, both to the Commission and to United Nations work in further codifying and developing international law. As the main body of the United Nations entrusted with the codification and progressive development of international law, he said there was expectation in the Commission that States would provide it not only with the material resources to do its work, but also, and more important, with the substantive input that was key to the successful conclusion of its work. Indeed, the quality of the Commission’s output was directly proportional to the amount of input received from member Governments.
He said the Commission had set for itself an ambitious agenda with a view to completing one or two sets of draft articles by the end of its new term, while at the same time making progress on all of its topics, including a series of new ones that had been recently included in its programme. The Commission would keep under review its work methods, to improve its productivity without affecting the quality of its product.
Report on Host Country Relations
SOTIRIOS ZACKHEOS (Cyprus), Chairman of the Committee on Relations with the Host Country Committee, introduced that Committee’s (document A/C.6/57/L.25). He noted Annex I containing a list of topics for the Committee’s consideration, and Annex II, a list of documents relating to those topics. He said the Committee was a unique, important forum for the United Nations and Member States to exchange views with host country representatives. No member had the right to veto. The new diplomatic parking programme implemented by New York City on 1 November had generated much interest and comment.
EMILIA CASTRO DE BARISH (Costa Rica), speaking on behalf of the Rio Group of countries, called attention to the importance of upholding all the relevant agreements between the Organization and the host country. Many had expressed concern over the new diplomatic parking programme. There had been disappointment that the 1 November implementation date had not been deferred as requested. Views had been expressed over the deleterious impact the new law would have on the diplomatic relationship with the host city and with the ability of missions to perform their jobs. The host country should fulfil its obligations under the Headquarters Agreement.
NGUYEN THANH CHAU (Viet Nam), speaking for the Association of South-East Asian Nations (ASEAN), said he hoped the host country would not let diplomatic immunities and privileges be compromised. At the same time, he recognized the responsibility of the diplomatic community to abide by the host country’s rules and regulations. While the host country had a right to control entry into its territory to ensure that national security concerns were addressed, care must be exercised and balance found to ensure that travel regulations did not undermine the participation of delegations in the work of the United Nations and the functioning of missions. The host country should exercise flexibility and reconsider the necessity of subjecting visiting dignitaries and officials to stringent and embarrassing security checks.
AHMED ELMESSALLATI (Libya) said the issues noted in the report were of critical importance. They affected the ability of Member States to perform their work. The travel restrictions on certain missions were in violation of the Headquarters Agreement and of the Geneva Convention. Conditions at his own Mission were untenable. Members could travel to their homes in the neighboring state of New Jersey only twice a month. While the host country had a right to protect itself, it should also meet its obligations and lift the restrictions. It was also unfortunate that implementation of the diplomatic parking programme had not been deferred.
SERGEY TARASENKO (Russian Federation) said he was pleased that the host country committee worked in an atmosphere of mutual trust. The committee had conducted active mediation work in resolving problems in relations with the host country. Its record was good, he said. It was important that the focus of its work remained the resolution of problems. He referred particularly to the problems of the parking of diplomatic vehicles. The question should be resolved through dialogue and in the spirit of obligations of the United States.
Attempts to adopt unilateral measures had caused deterioration in relations, he said, and created problems as had recently been shown. He called on the local authorities of New York to show regard for the needs of the diplomatic community in the city. He also touched upon the delays in the issuance of visas, and noted the efforts of the United States Mission to resolve the problem. The Russian Federation was concerned about the lack of progress on the question of travel restrictions imposed by the host country on the staff of certain missions. Those restrictions, he said, were discriminatory and contravened international law.
He said efforts should be made not to erode the mutual understanding cultivated for many years. The Russian Federation supported the conclusions and recommendations of the host country committee which reflected concerns being reflected at the meeting.
MARTIN KOFOD (Denmark), speaking for the European Community and its associated States, welcomed the efforts of the United States to accommodate the interests and requirements of the diplomatic community. He expressed the gratitude of those countries, particularly to the City of New York, for the supplementary efforts made to ensure the security of the missions accredited to the United Nations.
Questions regarding the issuance of visas and about movements of staff of certain countries within the United States should be settled in conformity with the relevant provisions of the Host Country Agreement, he said. On transportation and related matters, he said European Union and associated countries emphasized again the importance of ensuring a sufficient amount of parking space for diplomatic vehicles. The diplomatic missions in New York could not function efficiently when the access of their personnel was hindered by insufficient parking capacity. Issues related to the diplomatic parking programme should be kept under review, particularly on whether the operation of the new scheme was compatible with international law.
ALLIEU IBRAHIM KANU (Sierra Leone) said his Mission and staff endeavoured to comply with obligations expected of permanent missions. Since the 9/11 incidents, the host country had taken measures to protect missions. At the same time, diplomats travelling outside the country had been subjected to acts not in conformity with the relevant Vienna conventions. He spoke in particular about incidents at United States airports in which an ambassador of his Mission had been forced to take off his shoes and jacket despite the production of diplomatic documents. The ambassador had, in short, been disrespected. He said the United States authorities should reciprocate courtesies extended to their diplomats overseas. They should also educate their airport personnel about the way they dealt with high-level diplomatic personnel.
He also spoke of the problems related to the regulations on the parking of diplomatic vehicles in New York City which, he said, were contrary to international law and all relevant agreements between the host country and the United Nations.
ERIC ROSAND (United States) said his country was honoured to serve as host country to the United Nations, and was proud of its record in that respect. It was grateful to those delegations whose remarks had positively recognized the host country’s efforts. Since 1946, the United States Government had fulfilled the broad range of treaty obligations and commitments under international law expected of it as host country. It remained committed to doing so in the future, he said.
He also said the United States believed that the Committee on Relations with the Host Country was a valuable forum in which to discuss all issues relating to the presence of the large, diverse, and dynamic diplomatic community in one of the largest, most diverse and most dynamic cities on the globe. The meetings of the host country committee and its working groups provided the host country with an opportunity to assess the United Nations community’s concerns, allowing it to address those issues together. He said the host country appreciated the cooperation and the constructive spirit of the members of the host country
committee in the Committee's work and the assistance provided by the United Nations Secretariat.
He recalled that during the year, the host country committee had discussed the new diplomatic parking programme. It had asked the United Nations Legal Counsel for a legal opinion on the programme and had been informed that the programme was consistent with international law, and the host country’s obligations. That had not been surprising, he said, since the valid concerns and preferences of the New York diplomatic community had been taken into account as the programme was developed with the City of New York. The parking programme had come into effect on 1 November, and his delegation was committed to ensuring that the programme was implemented as written. It was also committed to undertaking periodic reviews of the programme’s effectiveness and fairness.
He said restrictions on private non-official travel on members of certain missions –- which some Committee members had objected to -- did not violate international law. The United States provided mission members and delegations with unimpeded access to the Headquarters district. The restrictions did not interfere with travel for United Nations business, he said.
Draft on Host Country Relations
KONSTANTIN MOUSHOUTAS (Cyprus) introduced the draft resolution on “Report of the Committee on Relations with the Host Country” (document A/C.6/57/L.25) with oral amendments.
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