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

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