Mr Chairman,
I have the honour to speak on behalf on the five Nordic Countries, Denmark, Finland, Iceland, Norway and my own country Sweden, and would like to address Chapter IV, international liability, and Chapter IX, reservations to treaties.
As to international liability for injurious consequences arising out of acts not prohibited by international law, the Nordic countries note with satisfaction the work done by the Commission during its fiftieth session on the prevention of transboundary damage from hazardous activities. The draft articles reflect basic principles of international environmental law as it has developed from the Stockholm Conference in 1972 to the Rio Declaration on Environment and Development. The approach taken by the Commission is a cautious one, leaving out for the time being the question of compensation for harm caused. This approach may be understandable given the complexity of the issue and the widely disparate views expressed earlier in the debates of this committee on the subject. It remains, however, the view of the Nordic countries that a future international legal instrument should cover both the issue of prevention of transboundary harm and the duty to pay compensation for harm caused.
The Nordic countries have made comments earlier on the issue of prevention orally in this committee and through written remarks. I won´t repeat them but refer to our more detailed comments in our intervention in this committee on 11 November 1996, also presented as written observations. Those views are still valid. Then I would, however, like to repeat and stress our view that the issue of prevention is not only relevant to activities involving risk, i.e. hazardous activities, but also comes into play in relation to the containing and minimising of adverse effects from normal conduct of harmful activities and from accidents. We thus regret that article 1 (b) of the draft text has been deleted, limiting the scope of the text to hazardous activities only.
We see the decision of the Commission to separate the issues of prevention and of liability as a temporary one and would recommend the Commission to go on with the liability issue now that the Commission has adopted in a first reading 17 articles on prevention. The need for effective compensation to the innocent victim must be a guiding principle in the elaboration of those articles.
As regards the nature of the instrument we should be aiming at, the Nordic countries have at this stage a flexible approach. One possibility could be to work out a framework convention of a legally binding character, with the option of treating certain parts of the topic in the form of guidelines or recommendations.
We would like to express our sincere gratitude to the Special Rapporteur Mr. P S Rao for his impressive and thorough work and promise the full support of the Nordic countries to the Commission for its future endeavours on this important but extremely complex topic.
The subject "Reservations to Treaties" which has now been on the ILC agenda for some years seems to have attracted a growing interest among states. Within the Council of Europe, for instance, work is underway to create an observatory of reservations to international treaties. The Asian-African Legal Consultative Committee had a special meeting devoted to reservations in April this year.
The Nordic countries note this growing interest in the topic with great satisfaction. Reservations to treaties is something foreign services and international organizations are confronted with almost every day and where an authoritative user's guide produced by the Commission will no doubt be of great practical value.
First of all we would like to compliment the Special Rapporteur Professor Pellet for the excellent work he has produced on the highly complex task of drafting a Guide to practise on this subject. The work done on the guide, so far, is indeed very promising. We have now seen the first draft guidelines which are the result of an impressive in depth analysis and some of the draft guidelines have been adopted by the Commission on first reading.
As regards the specific issue on which comments would be of particular interest to the Commission, the Nordic countries are not convinced that too much work should be devoted to the problem of what has been labelled extensive reservations. I wish to refer here to the proposed guideline 1.1.5. as well as to guideline 1.1.6. Neither has been adopted by the Commission.
It is of course important that a thorough analysis is undertaken of questions which may arise concerning reservations. But , if going too much into detail in relation to issues which appear to be of a more theoretical than practical interest, one may lose sight of the end result we would like to see, i.e. a guide to practitioners.
The guidelines will also address the question of interpretative declarations. The Special Rapporteur has advocated approaching the two subjects in parallel. The draft guidelines on each will be presented in tandem under particular topic headings applicable to both, e.g. definitions or legal regimes. The Nordic countries have an open mind as to this parallel approach. There is a very close link between such declarations and reservations. Interpretative declarations may in some cases in fact be hidden reservations. What is essential is that the work of the Commission and of the Special Rapporteur provides us with easily understood guidelines which clarify the differences - and similarities - between reservations and interpretative declarations.
The Commission and the Sixth Committee have no intention of altering the reservations regimes contained in the three Vienna Conventions. On issues directly addressed within the Conventions the guidelines will merely act to dispel confusion and provide auxiliary definitions to fill in the gaps left open by the Vienna regimes.
One area where gaps have been identified is inadmissible reservations, for example reservations which are incompatible with the object and purpose of a treaty or other reservations prohibited by Article 19 of the Vienna Convention.
Reservations carefully lodged can be seen as a sign that the reserving state takes treaties seriously. But some reservations are so general that it is impossible to reconcile the scope of the reservations with the object and purpose of the treaty concerned. It is impossible to assess the practical impact of the reservation. This has happened all too often in the area of human rights treaties.
When states have objected to such reservations they have asked themselves whether the Vienna regime on the consequences of objections leads to a satisfactory result. According to the Vienna regime the effect of an objection to a reservation is that the provisions to which the reservation relates do not apply as between the two states "to the extent of the reservation".
Such a result is of course acceptable in relation to multilateral treaties where there is a clear element of reciprocity on the bilateral level. Such characteristics are not so evidently present in human rights or other normative treaties. What the objecting state would like to see in the sphere of human rights treaties is the opposite result, i.e. the reserving state should be regarded as a party to the treaty without the benefit of the reservation.
This is the so called severability doctrine which has been applied in a number of instances by i. a. the Nordic countries during the past few years.
Professor Pellet has not yet had time to complete his third report. According to the plans he has indicated, the report will also deal with the formulation and withdrawal of reservations, acceptances and objections to reservations. In the light of what was said before we look forward with particular interest to his analysis regarding inadmissible reservations and objections to such reservations. It is our hope that this part of the report will reflect practise adopted lately by among others the Nordic countries especially in connection with human rights treaties.
It has to be recognized that the great majority of States parties to human rights treaties prefer to remain silent as to reservations declared by other parties however troubling these may be. We note with satisfaction, however, that more states than before show an interest in this field. A positive development is also that some states which have made unspecified reservations have endeavoured to make them more precise thus facilitating for others to assess the practical impact of the reservation.
In conclusion, Mr Chairman, we would once again wish the Special Rapporteur and the ILC all success in the future work on this topic and promise them the full support and cooperation from the Nordic countries.
Thank you, Mr Chairman.