Statement of Portugal to the Sixth Committee of the United Nations General Assembly on 1 November 2002

NEW YORK, 1 NOVEMBER 2002
Statement by Ms. Margarida Rei, Director of the Department of Legal Affairs of the Ministry of Foreign Affairs and of the Portuguese Communities, to the Sixth Committee of the United Nations General Assembly (Agenda item 156: Report of the International Law Commission on the work of its fifty-fourth session)

Chapter IV: Reservations to Treaties;
Chapter V: Diplomatic Protection ;
Chapter VI: Unilateral Acts of States;
Chapter; VII: International Liability for injurious consequences arising out of acts not prohibited by International Law (International Liability in case of loss from transboundary harm arising out of hazardous activities);
Chapter IX: Fragmentation of International Law: Difficulties arising from the diversification and expansion of International Law

Mr. Chairman,

Let me begin by thanking the Chairman of the International Law Commission, Mr. Robert Rosenstock, for his various introductions of the Report of the fifty-fourth session of the Commission. My delegation would also like to thank Professor Dugard for his presentation on the topic of Diplomatic Protection.

Portugal has been following attentively in Geneva the current work of the Commission and notes the excellent job achieved once again by the ILC during the last session.

We note with particular satisfaction the adoption by the Commission on first reading of draft articles 1 to 7 on Diplomatic Protection and respective commentaries as well as of 11 draft guidelines on Reservations to Treaties, likewise with respective commentaries.

My delegation is also pleased that the ILC has initiated its study of the second part of the topic International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law and began considering the new topics Responsibility of International Organisations and Fragmentation of International Law.

We appreciate that, in response to paragraph 13 of General Assembly Resolution 56/82 of 12 December 2002 , the Commission has indicated specific issues for each topic on which expressions of views by Governments either in the Sixth Committee or in written form would be of particular interest in providing effective guidance for the Commission on its further work.

Portugal has began to study carefully the specific issues on which comments would be of a particular interest to the Commission regarding Reservations to Treaties, Diplomatic Protection, International Liability in case of loss from transboundary harm arising out of hazardous activities and Responsibility of International Organisations and will share in due time with the Commission its views.

We will therefore focus our intervention on general comments regarding topics on the agenda of the Commission to which we attach particular importance, v.g., Diplomatic Protection, Reservations to Treaties, Unilateral Acts of States, International Liability and Fragmentation of International Law.

Mr. Chairman,

1.         Diplomatic Protection (Chapter V of the Report)

Portugal continues to follow with great interest the work of the Special Rapporteur and of the ILC on the topic of diplomatic protection, an institute of great actuality and usefulness in contemporary international relations.

My delegation would like to welcome the progress made regarding draft articles 12º to 16º as reported in Document A/57/10. Regarding draft article 16º, however, we believe that the inclusion of a draft provision as initially proposed by the Special Rapporteur limiting the validity of the so-called “Calvo clause” to disputes arising out of the contract containing the clause, without precluding the right of the State to exercise diplomatic protection on behalf of its nationals would be appropriate.

Regarding the scope of the draft articles, Portugal understands the concerns expressed by the Special Rapporteur that this work should not go beyond the traditional topics falling within the subject of diplomatic protection, namely nationality of claims and the exhaustion legal remedies, as well the view of the Commission that the draft articles should be adopted on second reading by the end of the quinquenium.

Nevertheless, my delegation believes that due consideration should be given, in the form that the Commission should deem most appropriate, to important issues such as the relationship between functional protection by international organisation of their officials and diplomatic protection as well as the case where a State or an international organisation administers or controls a territory.

Portugal will comment in due time on the extension of diplomatic protection to crew members and passengers on ships and aircrafts and on other possible circumstances where the State of nationality of the shareholders should be entitled to exercise diplomatic protection.

Allow me, Mr. Chairman, just a short note on the draft articles 1 to 7 on Diplomatic Protection provisionally adopted by the ILC at this session. As we have stated above, my delegation notes with particular satisfaction their adoption and believes they are a good basis for the further work of the Commission. However, we are concerned that with regard to the diplomatic protection of stateless persons and refugees (article 7) the requirement of both lawful and habitual residence sets a threshold that is too high and could lead to a situation of lack of effective protection for the individuals involved.

While recognising that this is a matter of progressive development and that one is departing from the traditional rule that only nationals may benefit from the exercise of diplomatic protection, further consideration should be given to the question of the requirements or preconditions for the exercise of diplomatic protection in respect of non-nationals when those nationals are stateless persons or refugees.

2.         Reservations to Treaties (Chapter IV of the Report)

Portugal notes with satisfaction the steady progress on the issue of Reservations to Treaties.

We particularly welcome the work done by the Special Rapporteur in his 7^th Report on the guidelines concerning withdrawal and modification of reservations. This is an area of great practical importance and where there is little or no indication in the Vienna Conventions and other instruments.

One specific area to which my delegation attaches particular importance is to the question of the permissibility, compatibility or admissibility of reservations and to the clarification of the role played by treaty monitoring bodies in this respect.

We encourage the Special Rapporteur to continue to study the issue and to formulate the proposals he deems adequate. In this regard, we welcome the request forwarded by the ILC to the Sub-Commission on the Promotion and Protection of Human Rights that opportunities for consultation should be organised during the next session.

3.         Unilateral Acts of States (Chapter VI of the Report)

Portugal recognises the important role played by unilateral acts in international relations and the need to codify and develop rules regulating their functioning. Portugal continues therefore to support the continuation of the study of this topic by the ILC and remains ready to contribute to the Commission’s work.

We encourage the Commission to continue to study the general and specific rules applicable to the various types of unilateral acts and to build upon that in order to draft a complete and coherent set of rules on the matter.

4.         International Liability in case of loss from transboundary harm arising out of hazardous activities (Chapter VII of the Report)

Portugal attaches great importance to the draft articles on the question of prevention of transboundary harm from hazardous activities finalised last year by the Commission.

But, as my delegation has stated in previous occasions, rules have also to be clearly established to deal with the cases where, despite prevention or where prevention is not possible or effective, the event or accident eventually occurs, thus producing transboundary harm.

Like several other delegations, Portugal has been committed to promoting the continuation of the work of the International Law Commission on the issue of liability for injurious consequences arising out of acts not prohibited by international law. Therefore, welcomes the decision of the Commission to resume the study of the second part of the topic and to establish a working group to consider the conceptual outline of the topic.

We intend to contribute to this debate and will comment in due time regarding the important issues raised in the report of the Working Group, for instance concerning the role of the operator and the State in sharing that loss, including its possible residual liability, the threshold for triggering the application of the regime on allocation of loss caused as well as concerning the inclusion of the harm caused to the global commons.

5.         Fragmentation of International Law (Chapter IX of the Report)

The topic Fragmentation of international law: difficulties arising from the diversification and expansion of international law is a subject of great actuality and of practical importance, though strikingly different from other topics that have so far been on the agenda of the ILC. It seems therefore natural that the result of the work of the Commission on this topic will also have to be different, and it does not seem likely to arrive to a set of draft articles or even to a resolution on the issue, but conceivably only to a study that would contribute to a better understanding of the issue.

In the last five decades, international law has been subject to great “fragmentation” in terms of legal regimes regulating the same subjects, originating from different treaty relations between States or from different international organisations, of a universal or regional character. We have also witnessed a multiplication of international jurisdictions – courts and tribunals -, sometimes with competing competencies.

Portugal shares the view that one cannot say today that there is an homogenous international law system, and this can be translated into practice into contradictory legal regimes and judicial decisions and might generate an instability in international law and consequently in international relations. The preliminary study of the Commission illustrated the topic well with several examples of potential conflict: Charter of the United Nations and other obligations arising under international law; immunity and human rights; trade and environmental regulations; law of the sea and fishing regulations; etc.. However, it is also Portugal ’s view that international law is a true système and therefore, rules are to be found within the system to solve these types of problems.

By studying this subject, the ILC will contribute to alerting States to the issue and could, eventually, adopt some guidelines on the question similar to what it has done with regard to the topic “Reservations to Treaties”.

Therefore, Portugal commends the Commission for having included this topic its programme of work and for having established a study group and welcomes the recommendation that the first study to be undertaken should be on the issue entitled “The function and scope of the lex specialis and the question of self-contained regimes”.

Thank you Mr. Chairman.