Russia’s position in reinforcing the legal grounds of world order
STATEMENT BY ROMAN A. KOLODKIN, DIRECTOR OF LEGAL DEPARTMENT, MINISTRY FOR FOREIGN AFFAIRS, RUSSIAN FEDERATION ON AGENDA ITEM 156 REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK OF ITS 54TH SESSION 1 NOVEMBER 2002
I would like to begin with the topic of "Diplomatic protection". This topic is of special significance to us since according to our Constitution it is an obligation and not a right of the Russian State to protect its nationals abroad. Let me express my gratitude to the Special Rapporteur, Mr. John Dugard for his work. Thanks, to much extent, to his efforts there are reasons to believe that the work on this issue is not far from its completion.
First of all, I would like to touch upon one of the issues raised by the Commission, namely, the right of the flag State to protect the crew members and passengers who hold nationality of a third State.
In our view, this right of the flag State is provided by the international law of the sea, is lex specialis and should not be covered in the present draft. However, this important rule of international law of the sea should not exclude prerogatives of the State of nationality of crew members and passengers to exercise diplomatic protection. It is of particular importance to keep that in mind given the wide-spread practice of "convenient" flag when the flag State quite often does nothing to protect the crew members of the ship of this "convenient" flag.
One, we believe, should not formulate provisions on protection by an international organization of its personnel in this draft. This is a separate, specific subject that, first of all, falls within the field of privileges and immunities of international organizations and their staff.
Neither the issue of protection by an international organization of persons living in the territory under its control has to do with the diplomatic protection.
I would like to point out that we are pleased to see that the Commission does not try to include provisions that arouse acute divergences among its members in the draft. We should welcome the position of the Special Rapporteur who does not impose his opinion on his colleagues. This is the example to follow.
The issue of exhaustion of local remedies is, of course, an important aspect of the problem under consideration. The Commission, probably, was right to omit draft articles 12 and 13 proposed by the Special Rapporteur. At the same time, the draft articles, comments and debate on them in the International Law Commission are very valuable, at least, as food for thought.
From a practical viewpoint, it is not so important for us to determine whether this rule is of substance or of procedure. Nevertheless, it would be of great significance to have common understanding that an internationally wrongful act entails international responsibility of the State regardless of whether local remedies are exhausted or not.
It is hard to question that the exhaustion of local remedies is a necessary prerequisite for diplomatic protection in cases when the invocation of responsibility of a State is involved. But, as one can deduce from Article 1 the definition of diplomatic protection approved by the Commission, the diplomatic protection is not limited to the issue of a State's responsibility. In our view, and the practice of States confirms that, the diplomatic protection is not confined to the issue of responsibility but includes other diplomatic measures to protect violated rights of nationals and legal entities of the State as well. We see that such measures, not related to the issue of responsibility, are often taken in practice before the exhaustion of local remedies. Thus, we are not sure that such measures of diplomatic protection can be legally contested referring to the exhaustion of local remedies rule.
We also point out that the exhaustion of local remedies rule has exceptions. It is important that these exceptions are clearly worded in the articles. This also concerns the issue of waiver of the requirement that local remedies be exhausted. In particular, we would like to note that estoppel, in our view, is a form of implicit waiver.
On the whole, we believe that the topic of diplomatic protection should be a priority for the Commission, and we expect here tangible results in the nearest future.
As for the topic of reservations, we would like to draw your attention to the following.
In our view, one should be very cautious about formulating in the Guide to Practice provisions regarding functions of depositaries and prerogatives of a Treaty monitoring bodies.
We believe that in principle one should proceed from the following presumption: unless otherwise agreed by the parties to a relevant international Treaty, both the Treaty depositary and monitoring body shall not express any views on reservations to this Treaty.
Taking it into account, we are somewhat doubtful about draft general provisions 2.5.4., 2.5.X. and 2.1.8.
On the issue of the date from which a reservation withdrawal produces a legal effect, additional consideration is required. In particular, we have some questions about the right of a State to declare such a withdrawal retroactive. For instance, the retroactive withdrawal of reservations may pose certain problems, if a Treaty is designed for those involved in economic, commercial activities. Stability and predictability of the legal regime are vital for them.
The same is relevant to the question raised by the Commission about the possibility to use e-mail or fax for a communication of reservations or their withdrawals. In this regard, one should bear in mind that the use of modern communication means and subsequent confirmation of the State's decision by traditional means also leads to a situation similar to the retroactivity. On the one hand, the recipient of a communication cannot be sure of its authenticity until a diplomatic note confirms it. On the other, it is assumed that such a communication shall produce the legal effect before its confirmation. In principle, we, of course, encourage the use of modern technologies in the international communication. However, the Commission should proceed with greater caution, if it opts to cover these matters in the Guide to Practice. In this case, it seems important to ensure the authenticity of the faxed or e-mailed communications that depositaries or States receive.
We commend the draft general provisions on partial withdrawal of reservations, which were proposed by the Special Rapporteur. This novelty not contradicting to the Vienna Conventions introduces an additional element of flexibility in the relations between the States. In many cases, indeed, a State not willing to completely withdraw a reservation may be interested in mildening it, thus helping more adequately meet the interests of States and fuller implement multilateral conventions as well.
We also welcome the provisions to be included in the Guide which recommend the States to regularly review their reservations with a view to withdrawing – either partially or completely – those which no longer meet the political interests or legal requirements of the relevant countries.
Concluding our comments on this topic, we would like to note that we are looking forward to the day when the Commission will proceed to the study of essential aspects of the problem of reservations, in particular, the validity of reservations and consequences arising out of objections to them.
"Unilateral acts of States"
It is obvious that this issue is the most controversial of those under consideration of the Commission. Not surprisingly, almost every year its discussion starts with the debate on whether any codification attempts in this area would be appropriate.
We ask ourselves the same question. Do the Commission's members have to spent their precious time and efforts to discuss this vexing issue? We have certain doubts in this regard.
Yet, if the Commission continues its work on this problem, it would be advisable to shift the focus from its general aspects to, first of all, specific types of unilateral acts. Maybe, it is worthwhile to start with one of them, for example, recognition.
The study of a very urgent and challenging topic – "Responsibility of international organizations" – is appropriate to focus on intergovernmental organizations. In this regard, it would be interesting to consider the very definition of "intergovernmental organization" which, perhaps, would be of importance for the work on the issue.
In conclusion, we would like to assure you of our interest in other issues that are being discussed by the Commission: "international liability of injurious consequences arising out of acts not prohibited by international law", "fragmentation of international law" and "shared natural resources".
Thank you, Mr. Chairman.