56th Session of the General Assembly
Agenda Item 162
Report of the International Law Commission
Statement by H.E. Ambassador Hans Winkler
Legal Adviser of the Foreign Ministry of the Republic of Austria
New York, 31 October 2001
56th Session of the General Assembly
Agenda Item 162
Report of the International Law Commission
Statement by H.E. Ambassador Hans Winkler
Legal Adviser of the Foreign Ministry of the Republic of Austria
New York, 31 October 2001
Mr. Chairman,
This is my first opportunity to express my personal pleasure to see you, Mr. Chairman, presiding over this year’s session of our Committee.
I would also like to express the Austrian delegation’s appreciation to the current Chairman of the International Law Commission, Peter Kabatsi from Uganda, for the particularly fruitful work the Commission was able to carry out this year. We applaud in particular the adoption of the draft articles on State responsibility.
Mr. Chairman,
Let me firstly address the issue of State responsibility. The ILC has given absolute priority to this subject during its last two sessions, and has this year, after more than fifty years of labor, successfully concluded its work on it. Our appreciation goes to all five Special Rapporteurs who have contributed to this effort, but we want to pay a special tribute to the last Special Rapporteur, Professor Crawford, for the high quality of his work, which allowed to reach the point where we are now: the opportunity to discuss a complete set of draft articles on responsibility of States for internationally wrongful acts, adopted by the ILC.
Apart from adopting these draft articles, the ILC has also come up with a procedural proposal contained in paras. 72 and 73 of its report, the recommendation to the General Assembly that it take note of the draft articles in form of a resolution and that it annex the draft articles to this resolution. It is further recommended that the General Assembly consider at a later stage, and in the light of the importance of the topic, the possibility of convening an international conference to examine the draft articles on State responsibility with a view to concluding a convention on the topic.
I would like to express the full support of my delegation for the wise approach recommended by the ILC. We have had many discussions in the past, not only but also in this committee, concerning the legal form to be chosen for the result of the work of the ILC on the subject of State responsibility, whether one should opt for a binding legal instrument in the form of a multilateral convention or for a non-binding solution, like a General Assembly resolution. It is obvious that both avenues have their advantages and disadvantages, but serious reflection has led Austria to supporting the adoption of the draft articles as part of a General Assembly resolution. This is what the ILC recommends for this session of the General Assembly, without excluding, however, the possibility of convening an international conference on a convention on State responsibility at a later stage.
Once again, we support the recommendations of the ILC, also because following this approach will allow testing the set of articles on State responsibility contained in an annex to a General Assembly resolution as to their adequacy in the light of State practice. This important exercise will take place whether or not the General Assembly takes any further decision on this subject. Should there be a decision on convening an international conference, the work of this conference will have gained from the experience with the draft articles, if not, they can continue to serve, insofar as they are accepted by State practice, as a kind of „code of conduct“ on matters of State responsibility.
Recent events have confirmed that State responsibility is a highly sensitive subject, and, together with the non-use of force and non-intervention, to which it is closely related, perhaps the most highly politically charged part of international law. Under these circumstances, a code of conduct is the best means to consolidate the law of State responsibility - even at the price that in the short run deviations may occur and may have to be tolerated.
It should be noted in this respect that in addition to stating rules in writing, a code of conduct has yet another function which, odd as it may sound, is educational, or better habit forming: It means that in respect of rules which codify custom, opinio juris in wavering States may be consolidated. In its innovative, progressively developed part a code is a tool for shaping the future development of the law, either by building opinio juris for custom or by paving the way for a future multilateral convention. Whether the law develops along the indicated course can only be judged later, but the method has been successfully used for the development of whole branches of international law, such as human rights, outer-space and the environment
It is my delegation’s view that in the long run perceived fairness will lead to acceptance, and acceptance will also lead to an adjustment of conduct expressed in the draft articles on responsibility of States for internationally wrongful acts. What is really needed at this stage is a determined effort by the General Assembly and by the international community to convince States that to live with defined rules in this matter is to the mutual advantage of both, the victim of a violation and the alleged wrongdoer. The draft articles of the ILC on State responsibility make a genuine effort to establish a fair balance between the justified interest of the victim of a wrongful act to pursue its right and the equally justified interest of an alleged wrongdoer to be protected against abuse or excessive of humiliating demands.
It is criticized by some that the draft articles do not contain provisions on the settlement of disputes. As a matter of policy, Austria is always in favour of binding provisions for the peaceful settlement of disputes. In this case, however, the omission is not only acceptable but even necessary in view of the proposed status of the draft articles as an annex to a resolution. In my statement on this subject last year I remarked that „if the course of a General Assembly resolution is chosen, certain of the present draft articles would have to be adapted of even deleted, for example those concerning the settlement of disputes. However, this seems acceptable as there would always remain the possibility to resort to the already existing mechanisms for the settlement of disputes.“ We are still of this opinion.
Mr Chairman,
I would now like to turn to the topic of Prevention of Transboundary Harm from Hazardous Activities. This year the ILC has adopted its draft articles on this issue and recommended to the General Assembly the elaboration of a convention on that basis. Austria would like to express her appreciation to the ILC for completing its work and presenting these very interesting draft articles. We would like to congratulate the Special Rapporteur for this outcome, Mr. Pemmaraju Sreenivasa Rao, on the draft articles, elaborated under his leadership. We regard these articles as a big step forward in the elaboration of international law dealing with the prevention of transboundary harm from hazardous activities. For Austria, the codification and progressive development of international law on prevention of transboundary harm has always been a priority. In recent years – together with the European Community and its member States – we have made numerous proposals in various international fora – such as the United Nations Environment Programme – to elaborate international law concerning the prevention of transboundary damage. For us, prevention of harm is among the most important aspects for the achievement of the aim of sustainable development.
As a general comment, Mr Chairman, I would like to acknowledge that these draft articles represent a well thought-out and elaborate set of provisions, which will prove to be of fundamental importance to the international community in the challenge how to deal with transboundary harm from hazardous activities. Therefore, Austria strongly supports the recommendation of the ILC to elaborate a convention on the basis of the draft articles presented by the ILC. We are convinced that – due to the work of the International Law Commission and its Special Rapporteur, Mr Rao, - such a convention has a good prospect of being adopted within a short period of time.
At this stage, however, I permit myself to take the liberty to comment on a number of the draft articles in more detail. Some of my comments are to be seen merely as drafting matters, others are of a more substantive nature.
Article 1, which determines the scope of the draft articles, states that its applies to „activities not prohibited by international law which involve a risk of causing significant transboundary harm through their physical consequences“. As regards the words „not prohibited by international law“ we would like to question whether this addition is necessary. As „activities prohibited by international law“ would fall within the scope of other rules of international law, we do not think that the addition of the above mentioned words add anything to Article 1. Taking into account the first sentence of the „general commentary“ we would, therefore, suggest that consideration be given to the deletion of these words. In the comment to this article it is stated that these words have been inserted in order to separate the topic of international liability from the topic of State responsibility. As it is generally understood that these present draft articles concentrate on prevention these additional words could easily be deleted, as they are not needed for clarification of the scope of the draft articles.
Article 3 states that „the state of origin shall take all appropriate measures to prevent significant harm or at any event to minimize the risk thereof„. We agree with this proposition in general, but we consider it essential to have all the details of the relationship between the two different obligations.
Furthermore, in our view, the relationship between Article 3 and Article 10 needs to further be clarified. Article 10 lists the factors, which have to be taken into account in determining whether an activity within the territory of a State is to be permitted. In which way do these factors have to be taken into consideration under Article 3 to determine whether a State has fulfilled its obligation under this provision? In our view this needs to be further considered.
With regard to Article 5 we would like to underline that in our view the draft article states that States should take measures already in advance and should not wait that an emergency occurs. Therefore, the wording of this article should be improved in the sense that States are obliged to take the necessary measures without undue delay.
Austria supports the ideas expressed in Articles 9 and 10 on „consultations on preventive measures„ and on „factors involved in an equitable balance of interests„. We regard the obligation of States concerned to enter into consultations – which may already be seen as a rule of customary international law – as essential to achieve the best possible result concerning the prevention of transboundary harm. We note with great interest that para. 3 states that even in the case that an agreed solution is not achieved between the States concerned, the State of origin still has to take into account the interests of the States likely to be affected. We consider this to be an important provision towards achieving the goal of sustainable development.
Concerning the factors listed in Article 10 we take note of the understanding of subpara. d. that a „State likely to be affected is only to contribute to the costs of prevention“ if it intends to apply standards beyond internationally agreed measures.
Article 18 deals with the „Relationship to other rules of international law„. It states that „present articles are without prejudice to any obligation incurred by States under relevant treaties and rules of customary international law„. The commentary explains that it is intended to extend both to rules having a particular application and to rules, which are universal or general in scope. In our view such a general statement needs to be considered carefully and the effect of such a provision for the future application of the draft articles has to be discussed. Although the draft articles would be without prejudice for rules addressing e.g. a specified activity or applying to a particular regional scope, we would welcome a discussion on Article 18.
Article 19 on the dispute settlement follows well-established standards. We, therefore, do not have any objections to it. Last but not least we would like to state that overall we consider the draft articles to be satisfactory. We hope that the General Assembly will follow the recommendation of the ILC to elaborate a convention on the prevention of transboundary harm speedily.
Mr. Chairman,
My next issue is the area of reservations to treaties. In this context, let me first thank the Special Rapporteur, Mr. Alain Pellet, for the preparation of a Guide to Practice on Reservations to Treaties, contained in the report on the last session of the ILC. I would now like to use this opportunity to comment on some of the draft guidelines.
My first point concerns reservations formulated upon signature when a treaty expressly provides for this possibility. The relevant draft guideline No. 2.2.3 reads: „A reservation formulated when signing a treaty, where the treaty expressly provides that a State or an international organization may make such a reservation at that time, does not require formal confirmation by the reserving State or international organization when expressing its consent to be bound by the treaty.“
This guideline aims at constituting an exception from the general rule contained in guideline No. 2.2.1 saying that a reservation formulated when signing a treaty subject to ratification must be formally confirmed by the reserving State when expressing its consent to be bound by the treaty.
After having studied the commentaries to these guidelines it seems questionable whether there really is sufficient state practice for the view that in cases, where the treaty itself provides for the possibility to make a reservation upon signature, a confirmation upon ratification should not be necessary anymore. Our impression is rather that the state practice in this field is uncertain and inconsistent, which is why we would hesitate to understand the confirmations made by many States of their reservations first pronounced when signing such a treaty only as redundant „precautionary confirmations“, as it is said in the commentary.
As the next point I would like to address the draft guidelines on the late formulation of reservations, which means the formulation by a State of a reservation to a treaty after having expressed its consent to be bound by that treaty. According to guidelines No. 2.3.1 and 2.3.2 the formulation of such a late reservation shall in principle be possible on condition that no other contracting party objects to it within a period of 12 months. We are very concerned about the establishment of such guidelines that would have the effect of making the whole regime of treaty reservations applicable also to so-called late reservations. We must be aware of the fact that such late reservations do not fall under the definition of reservations, as it is reflected in Art. 19 of the Vienna Convention on the Law of Treaties. The ILC itself has elaborated a definition of reservations with the clear intention not to deviate from the Vienna Convention. According to this definition a „reservation“ means a unilateral statement, however phrased or named, made by a State or an international organization when signing, ratifying, formally confirming, accepting, approving or acceding to a treaty, whereby the State or organization purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to them. As this definition contains a clear reference to the point in time when a reservation can be made, it is evident that a so-called late reservation is in contrast to this basic definition. The consequence is that even if it is called „reservation“ a late reservation constitutes in reality a different kind of declaration that should be kept apart from the true reservations in order not to blur the quoted definition of reservations. Of course the States parties to a given treaty have the possibility to agree on applying the regime of reservations also to „late reservations“ made in regard to that treaty. However, in our point of view we should not generally treat such declarations not meeting the requirements of the definition like reservations.
The approach that is suggested in the guidelines would entail ominous consequences that should not be encouraged. It must be pointed out that by accepting „late reservations“ and by treating them in basically the same way as reservations, the basic principle of pacta sunt servanda as expressed in Art. 26 of the Vienna Convention would be undermined in a serious way. Apart from that, the application of the regime on „late reservations“ as proposed in the guidelines would result in the creation of a system of treaty amendment that is contrary to the regime established by Art. 39-41 of the Vienna Convention. Both of these consequences cannot be in our interest.
Regarding the guidelines on interpretative declarations, I wonder how far the guidelines are in conformity with Art. 31 of the Vienna Convention. Para. 3 of this Article emphasizes the need of the agreement of the parties on the interpretation. The guidelines do not properly accommodate this requirement.
As a last point I would like to address the concept of conditional interpretative declarations as defined in draft guideline 1.2.1, i.e. unilateral statements formulated by States or international organizations when signing, ratifying ... a treaty, whereby the States or organizations subject their consent to be bound by the treaty to a specific interpretation of the treaty or of certain provisions thereof. In connection with the draft guidelines on interpretative declarations there are further provisions on the confirmation and on the late formulation of conditional declarations. Apart from our impression that the concept of conditional interpretative declarations is a rather vague one, we wonder whether the actual occurrence of this kind of declaration really justifies their separate treatment. We rather think that the effect of such a declaration is very similar to a reservation; the formulation of a conditional interpretative declaration could even put into question a State’s commitment to the treaty. For this reason we do not wish to encourage the formulation of such statements under the designation of „interpretative declarations“. However, we would be ready to contribute to the clarification of this concept if dealt with in the area of reservations.
Mr. Chairman,
As to the program of the ILC for its next sessions in para. 259 of the report of the ILC, mention is made of the Commission’s decision to appoint two Special Rapporteurs on two of the five topics included in its long-term programme of work. These topics are (1) Responsibility of international organizations, (2) Effects of armed conflicts on treaties, (3) Shared natural resources of States, (4) Expulsion of aliens, and (5) Risks ensuing from the fragmentation of international law.
In our opinion it would be of particular interest to work and to appoint a Special Rapporteur on the question of responsibility of international organizations. The issue of shared natural resources could also be a promising subject; however, it does not seem entirely clear, what exactly is envisaged under this item. Does it focus on the question of the allocation of common deposits or does it also comprise areas that are already governed by various special regimes? This question must be clarified by the ILC as a first step. Also the issue of risks ensuing from the fragmentation of international law clearly deserves in-depth study by the ILC.
Thank you, Mr. Chairman.