Identifier
Created
Classification
Origin
08USUNNEWYORK1115
2008-11-26 16:59:00
UNCLASSIFIED
USUN New York
Cable title:  

UNGA/C-6: THE SIXTH (LEGAL) COMMITTEE DEBATES THE

Tags:  PREL UNGA 
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VZCZCXYZ0006
PP RUEHWEB

DE RUCNDT #1115/01 3311659
ZNR UUUUU ZZH
P 261659Z NOV 08
FM USMISSION USUN NEW YORK
TO SECSTATE WASHDC PRIORITY 5434
UNCLAS USUN NEW YORK 001115 

SIPDIS

E.O. 12958: N/A
TAGS: PREL UNGA
SUBJECT: UNGA/C-6: THE SIXTH (LEGAL) COMMITTEE DEBATES THE
ANNUAL REPORT OF THE INTERNATIONAL LAW COMMISSION (ILC),
CHAPTERS 6-8

REF: USUNNEWYORK 1094

UNCLAS USUN NEW YORK 001115

SIPDIS

E.O. 12958: N/A
TAGS: PREL UNGA
SUBJECT: UNGA/C-6: THE SIXTH (LEGAL) COMMITTEE DEBATES THE
ANNUAL REPORT OF THE INTERNATIONAL LAW COMMISSION (ILC),
CHAPTERS 6-8

REF: USUNNEWYORK 1094


1. Summary: The 63rd UNGA Sixth Committee held part two of
a three-part debate on the Report of the International Law
Commission (ILC) (A/63/10) October 29-30. The discussion in
part two included Chapter 6, "Reservations to Treaties;"
Chapter 7 "Responsibility of International Organizations;"
and Chapter 8, "Expulsion of Aliens." Paragraph 13 lists the
countries that made interventions. End Summary.


2. Part one's topics covered: Chapters 1-3, "Introductory
Chapters;" Chapter 4, "Shared Natural Resources;" Chapter 5,
"Effects of Armed Conflicts on Treaties;" and Chapter 12,
"Other Decisions" (Ref A). Part three's discussion will
consist of Chapter 9, "Protection of Persons in the Event of
Disasters;" Chapter 10, "Immunity of State Officials from
foreign criminal jurisdiction;" and Chapter 11, "The
Obligation to Extradite or Prosecute (aut dedere aut
judicare)" (Septel).

PRESENTATION OF CHAPTERS 6-8
--------------


3. In his introductory statement on Chapters 6-8, Chairman
of the ILC, Edmundo Vargas Correno presented 23 guidelines on
reservations to treaties, which were adopted in the ILC's
last session. The text of these guidelines and the summary
of the debate on the topic are contained in paragraphs 80-122
of the report (A/63/10). Correno highlighted the guidelines
on the time period for formulating an objection (2.6.13),
giving reasons for reservations (2.1.9),formulating
objections (2.6.5-2.6.15),and the withdrawal of objections
(2.7.1-2.7.8). Correno also presented eight draft articles,
adopted by the ILC, on the responsibility of international
organizations. He outlined the seven draft articles on
countermeasures, of which the ILC took note. The ILC debate
on countermeasures can be found in paragraphs 145-163 of
A/63/10. Finally, the Chairman said that the ILC had decided
to establish a working group on the topic "Expulsion of
Aliens" due to the divergent views expressed by the members
(paragraphs 170-213 of A/63/10).

GENERAL COMMENTS ON THE GUIDELINES
--------------


4. States called for giving greater clarity to the
guidelines. Many specified the changes and additions they
would like to include. Several delegates called for the ILC
to streamline its guidelines and Poland noted that the
Commission had produced so many guidelines that they were
almost unusable in their detail. Several representatives

suggested that the ILC eliminate guidelines that duplicate
provisions of the Vienna Conventions. Per Department
guidance, USUN expressed serious reservations about the draft
guidelines, noting that there was not enough State practice
from which to draw guidelines, and stated that the draft
guidelines went beyond the progressive development of
international law and instead promoted a new legal regime.

INTERPRETIVE DECLARATIONS VERSUS RESERVATIONS
--------------


5. Delegates expressed differing views on the need to
prescribe procedures specifically for interpretive
declarations. Several other speakers believed that outlining
such procedures would fill a gap in existing treaties and
guidelines. Other speakers believed that existing law
sufficiently provided for interpretative declarations.


6. States also debated where and how to draw distinctions
between reservations and interpretive declarations. Many
speakers highlighted the difficulties caused by the frequent
similarity between interpretive declarations and
reservations. Several delegates noted that drawing a
distinction is important since there would be different legal
requirements for and consequences of each. Several States
noted that unilateral interpretative declarations could only
have effect with respect to the declaring State, unless
another State explicitly associates itself with it.

THE QUESTION OF SILENCE AS ACQUIESCENCE
--------------


7. The debate addressed silence as acquiescence in relation
to interpretative declarations. Most delegates, including
the United States, expressed doubts as to whether silence
should be interpreted as consent. For example, Germany said
that since States do not explain silence, it is difficult to
ascertain its meaning as a response to declarations. China
called for the ILC to investigate whether there was any basis
in State practice to presume silence to be acquiescence.



INDICATING REASONS FOR RESERVATIONS
--------------


8. Many delegates argued that reasons should not be required
when making a reservation to a treaty. The Austrian
representative noted that it is difficult to determine the
legal effects of the reasons given for a reservation.
Several other delegations noted that a balance must be struck
between encouraging international cooperation and the use of
reservations.

RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS
--------------


9. Many States agreed that the articles on the
responsibility of international organizations could be based
on the articles on responsibility of States by analogy.
However, several States, including Portugal and the United
States, expressed serious reservations about the ILC's
assumption that the articles on State responsibility
established a model template for articles on the
responsibility of international organizations. Portugal
thought that the proposed draft articles had been
"over-copied" and were consequently "unnecessary, repetitive
and counterproductive." China noted that extension of the
draft articles on State responsibility by analogy could not
be applied in all circumstances.


10. On drawing a distinction between States and
international organizations, Italy held that there is a
difference between measures in response to the breach of an
obligation to a State versus to the international community
as a whole. The United Kingdom found it difficult to
consider that international organizations would have the same
right as States. The Netherlands thought that courts would
benefit from a set of general rules on the responsibility of
international organizations. Many States said that disputes
between an international organization and its member States
should be considered under the internal regulations of the
organization.

COUNTERMEASURES AND INTERNATIONAL ORGANIZATIONS
-------------- --


11. There was little agreement on the scope or procedure for
the use of countermeasures by or against an international
organization. Several delegates held that countermeasures
used by international organizations should be limited to
withholding the performance of treaty obligations. There was
some support in the debate for allowing international
organizations to apply countermeasures under the same terms
as those applied to States.

EXPULSION OF ALIENS
--------------


12. On the topic of expulsion of aliens, USUN, per
Department guidance, urged caution, noting that this is a
complex topic implicating a State's immigration laws as well
as national security. Similarly, the UK expressed doubts as
to whether this topic is suitable for codification and
consolidationQt the present time. New Zealand agreed with
the Special Rapporteur that it would not appear appropriate
at the present time to proceed with the preparation of draft
articles on this issue. Japan noted that there is a need to
"strike a delicate balance between the right of States to
decide upon the admission of an alien, which seems to be
inherent in State sovereignty, and fundamental human rights."
Italy noted that the study of expulsion of aliens is not the
appropriate place to embark on a discussion of matters
pertaining to the law of nationality. Some delegations, such
as the Czech Republic, asserted that persons with dual or
multiple nationality are protected under international law
against expulsion from the State whose nationality they have.

LIST OF SPEAKERS
--------------


13. The following countries made interventions: Austria,
Sweden (on behalf of the Nordic countries),Argentina,
Belarus, Belgium, Bulgaria, Canada, China, Czech Republic,
Denmark, Estonia, France, Germany, Greece, Hungary, Italy,
Malaysia, Mexico, Netherlands, Portugal, Philippines, Poland,
Republic of Korea, Romania, Russia, United Kingdom, United
States, Uruguay, and Vietnam.
Wolff