UNGA: SIXTH COMMITTEE DEBATES ILC ARTICLES ON

UNCLAS SECTION 01 OF 03 USUN NEW YORK 000968

SIPDIS

SIPDIS

E.O. 12958: N/A
TAGS: UNGA UNGA
SUBJECT: UNGA: SIXTH COMMITTEE DEBATES ILC ARTICLES ON
TRANSBOUNDARY HARM AND RESPONSIBILITY OF STATES


1. SUMMARY: During the October 23 Sixth Committee debate,
delegations delivered statements on the consideration of
prevention of transboundary harm from harmful activities and
allocation of loss in the case of such harm, and the
responsibility of States for internationally wrongful acts.
The key theme of the debate on both agenda items was whether
the draft articles and principles prepared by the
International Law Commission on these topics should be
negotiated as conventions, or remain as non-binding
recommendations to States. On the matter of transboundary
harm, the majority of delegations were opposed to a
convention and preferred to give more thought to the final
form of the draft articles and principles and their use in
State practice. Opinions regarding the draft articles on
State responsibility, however, were more divided. Twelve
delegations said that the time was "ripe" for the
codification of the draft articles in the form of a
convention. Fifteen representatives spoke against the
negotiation of a convention; however, some of these
delegations did not rule out the possibility of revisiting
the need for a convention in the future. END SUMMARY.

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Transboundary Harm
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2. During the October 23 debate on transboundary harm from
harmful activities and allocation of loss in the case of such
harm, the following delegations delivered statements to the
Sixth Committee: New Zealand (on behalf of Canada, Australia
and New Zealand (CANZ)); Norway (on behalf of Denmark,
Finland, Iceland and Sweden); Portugal; China; Argentina; the
United States; the United Kingdom; Mexico; Japan; Malaysia;
Pakistan; the Russian Federation; Venezuela; Austria; and
Indonesia.


3. Sixth Committee Chairman Alexei Tulbure (Moldova) opened
the discussion by reminding delegates that the task of the
Committee in the current session was to decide on how to move
forward with the International Law Commission's (ILC) draft
articles on transboundary harm and draft principles on the
allocation of loss in the case of such harm. (NOTE: Earlier,
the ILC prepared 19 draft articles on the prevention of
transboundary harm from hazardous activities, which it
recommended should take the form of a convention. Last year
the ILC completed a set of draft principles on the allocation
of loss from transboundary harm from hazardous activities and
requested responses from governments. END NOTE.)


4. Most delegations said more thought should be given to the
issue of transboundary harm and the final form of the draft
articles and principles. Japan stated that the principles on

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allocation of loss offered a good model, but they should be
left in their present form until more State practice could be
observed. Austria said it was too early to discuss a
convention and suggested the Committee revisit the matter in
three to five years. Pakistan raised concerns about the
scope of a possible convention. Malaysia argued that the
draft principles were never intended to serve as the basis
for a convention, but were written as guidelines for States.
China said both sets of articles should be attached to a
General Assembly resolution or declaration to serve as a
recommendation for States.


5. On the other hand, Argentina and Venezuela argued for the
negotiation of a convention, stating that a convention would
contribute to the development of international law and serve
as a guide for developing national legislation.

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Responsibility of States
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6. After the debate on transboundary harm, 29 delegations
delivered statements on the responsibility of States for
internationally wrongful acts: Australia (on behalf of
Canada, Australia and New Zealand (CANZ)); Finland (on behalf
of Denmark, Iceland, Norway and Sweden); Libya; India;
Portugal; Cuba; Guatemala; Mexico; China; Germany; Austria;
Poland; Chile; Malaysia; Korea; Greece; Pakistan; the United
States; France; Cyprus; the United Kingdom; Italy; Japan; the
Russian Federation; Ethiopia; Nigeria; Venezuela; and Sierra
Leone.


7. Many delegations acknowledged the great amount of time and
effort the ILC had invested in the draft articles. However,
delegations were divided on whether or not to negotiate a
convention. Fifteen representatives opposed negotiating a
convention, arguing that doing so could undermine the
articles by revisiting issues that took the ILC years to
reach consensus. Germany cautioned that, although a
convention would carry more legal weight, a convention
ratified by a small number of States would have significantly
less practical relevance than the articles in their present
form. The UK, Spain, and Austria shared Germany's concerns.
Nigeria and Sierra Leone noted that there was no urgent need
to conclude a convention as the articles were already in use
as guidelines by States and considered authoritative
references. Japan suggested the Committee allow more time to
observe State practice and reconsider the matter at a later
date. China and Korea also suggested revisiting the need for
a convention after further consideration of the draft
articles.


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8. Twelve delegations supported a convention. Portugal said
the time was "ripe" for the codification of the ILC's "most
important" set of draft articles. Furthermore, the draft
articles on State responsibility should constitute the "Third
Pillar" of the international legal order, alongside the UN
Charter and the Law of Treaties in the 1969 Vienna
Convention, Portugal argued. As to the adoption of a
convention, France said "the authority of international law
was at stake." Libya said codifying the draft articles was
in the interest of the harmonization of international law and
potential differences should not be an excuse for backing
away from a convention. Cyprus called for a conference on
State responsibility at the earliest opportunity and said
that "political will" was all that stood in the way of a
final convention on the matter.
Khalilzad