Permanent Mission of Hungary to the United Nations

51ST SESSION
OF THE UNITED NATIONS GENERAL ASSEMBLY
STATEMENT BY
H. E. AMBASSADOR DR. GYORGY SZENASI
REPRESENTATIVE OF
THE REPUBLIC OF HUNGARY IN THE SIXTH COMMITTEE

NEW YORK
NOVEMBER 13, 1996

It can be stated that the International Law Commission has continued to make considerable progress in 1996 on a number of important topics on its agenda.
Let us consider those issues briefly dealing in detail with only some of them:
1) Chapter II of the Report: Draft Code of Crimes against the Peace and Security of Mankind
The Hungarian delegation is pleased to note that the International Law Commission has been able to complete its work on the Draft Code of Crimes against the Peace and Security of Mankind, by adopting the final text of a set of 20 draft Articles. The magnitude of this task is clearly demonstrated by the fact that this item was put on the agenda of the Commission more than four decades ago. It is against this backdrop, that we add our voice to the Commission's resolution expressing gratitude and congratulations to the Special Rapporteur, Mr. Doudou Thiam.
Turning to the specific crimes contained in the draft, my delegation is in agreement with the Commission's intention to reduce the scope of the Code to those categories of crimes enjoying the widest support of governments. We also subscribe to the Commission's view that the exclusion of certain crimes which appeared on the earlier, wider list does not affect their status under international law. In the light of the close linkage between the two projects, we also feel compelled to commend the Commission for its efforts aimed at harmonizing the draft with the consensus emerging in the Preparatory Committee on the establishment and jurisdiction of an International Criminal Court.
Having said this, I cannot but note that the inclusion of one of the crimes contained in the draft, namely the inclusion of the crime of aggression does not appear to meet the requirement of general support. In this respect, let me draw your attention to the commentary appended by the Commission to the relevant Article of the Code, which on the one hand, states that "aggression committed by a state" is a sine qua non condition for individual responsibility for such a crime but, on the other hand, acknowledges that defining aggression as an act of state is beyond the scope of the draft. To further indicate the problems related to the crime of aggression suffice it to refer you to the ongoing discussion on this particular issue in the Preparatory Committee on the establishment of an International Criminal Court.
My delegation supports the inclusion of the other four categories of crimes in the Code. As for the crime of genocide, we are in agreement with the decision of the Commission to retain the definition contained in Article II of the Convention on the Prevention and Punishment of the crime of Genocide (1948). As regards crimes against humanity, we are satisfied that, taking into account recent developments in international law, its definition is based on the notion that there is no nexus between this category of crimes and a state of war.
We are also pleased by the fact that under subparagraph (f) institutionalized discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population is also listed as an act constituting a crime against humanity. Concerning the category of war crimes we particularly welcome the inclusion of subparagraph (f) covering non-international armed conflicts, and of subparagraph (g) relating to willful and severe damage to the environment.
Finally, we are in agreement with the inclusion of a new category of crimes, i.e. the category of crimes against United Nations and associated personnel in the final version of the Code, since attacks against such personnel are in effect directed against the international community and consequently are of concern to the international community as a whole.
In its report the Commission offered three possible forms the Code could take, namely an international convention, incorporation in the statute of an international criminal court or a General Assembly declaration, and invited the General Assembly to select the most appropriate option. The Hungarian delegation is of the view that the Draft Code should be incorporated in the statute of an international criminal court, provided that it will not unduly delay the completion of the work which is already at a very advanced stage in the Preparatory Committee dealing with this issue.
2) Chapter III of the Report: State Responsibility
As we all know - after 40 years of hard work - the Commission has succeeded in completing the first reading of 60 articles, and that of two Annexes, on "State responsibility".
In its statement last year, the Hungarian delegation already had the opportunity to single out a few important questions such as the countermeasures, proportionality and dispute settlement, all of which show the high complexity and contradictory nature of this topic. That is why we are indeed indebted to the distinguished Special Rapporteur, Mr. Arangio-Ruiz for his perseverance and skill in finalizing the draft as submitted to the General Assembly. We should also recall the outstanding contribution to the elaboration and drafting of these draft articles of the two previous special rapporteurs, Judge Ago and Professor Riphagen, whose memories we continue to cherish.
We fully agree with the decision of the Commission according to which the draft articles will be submitted, through the Secretary-General, to Governments for comment and observations, with the request that such comments and observations be submitted to the Secretary-General by 1 January, 1998.
In view of this procedure the Hungarian delegation does not wish to comment on the draft articles at this juncture but wishes to underline its commitment to a very thorough examination of the draft articles whose eventual adoption by the international community would represent a major breakthrough in the codification and progressive development of international law.
3) Chapter IV of the Report: State succession and its impact on the nationality of natural and legal persons
During the last session of the General Assembly my delegation has already had the opportunity to express its appreciation of, and gratitude for, the excellent work of Dr. Václav Mikulka, the Special Rapporteur of this topic.
This subject matter has been, and continues to be a very important political and legal issue, especially in Central and Eastern Europe due to the radical changes in the course of the last few years in that region of the world. That is why we welcome the results of the Special Rapporteur's second report and agree with his conclusions and recommendation, according to which the ILC should continue to focus on the nationality of natural persons and, consequently, it should take up the question of the succession of States and its impact on legal persons at a later stage. We also share his warning that the division does not mean that the Commission should ignore certain links between the two parts of the topic. We have also studied carefully the recommendations of the Working Group which had already been established at the last session of the Commission. We are in agreement - in general - with the major thrust of these recommendations as contained in paragraphs 80-87 of the Report (pp. 174-176).
We are of course some distance from the final content and form of the instrument to stay which is to be formulated in the coming years. The Hungarian delegation, however, feels somewhat uneasy concerning subparagraph b) of paragraph 88 of the Recommendations regarding the form of the future instrument.
My delegation has always been ready to accept any flexible approach which might contribute to finding a compromise solution on a given subject matter. At the same time we cannot help but wonder which kind of an instrument we are discussing when it is intended "to take the form of a declaration of the General Assembly consisting of articles with commentaries". (Italics added). This would indeed be a novelty without precedent.
The Hungarian delegation would therefore like to call for further careful study as to the form of the instruments, without losing sight of the most important question of this topic, i.e. the formulation of its major principles as well as the obligations and rights of the States in such a way as to better safeguard the rights of the individuals so that they not be left defenseless in the wake of dramatic changes in human history.
4) Chapter V: International liability for injurious consequences arising out of acts not prohibited by international law
The Hungarian delegation concurs with the assessment of the Commission that the report of the Working Group on this matter, and above all, the draft articles submitted, represent a substantial advance on the work on the topic. (ILC Report, p. 181)
My delegation would like to make the following general comments on the draft articles:

- First of all, we do agree that the nature of the draft articles on international liability for injurious consequences should be residual in character. This approach is reflected mainly in Article 8 on "the relationship to other rules of international law". As it is underlined in the commentary to this article (the draft articles)..." apply only in situations where no more specific international rule or regime governs". (ILC Report, p. 287.)
- Secondly: We agree with the principle that States be not precluded from carrying out activities not prohibited by international law - notwithstanding that there may be a risk of transboundary harm arising from those activities. At the same time we would like to stress that the freedom of action of states in that regard is not unlimited. As is emphasised in Article 3: " It is subject to the general obligation to prevent or minimize the risk of causing significant transboundary harm..." And here we would like to underline the obligation to prevent, which is also reflected in Article 4 on Prevention.
- Thirdly: We welcome the inclusion of Article 5 on Liability in the framework of fundamental principles. We commend the Commission for taking into account Principle 22 of the Stockholm Declaration and Principle 13 of the Rio Declaration in which States are encouraged "to cooperate in developing further international law regarding liability and compensation for environmental damage caused by activities within their jurisdiction or control to areas beyond their national jurisdiction." (ILC Report, p. 273)
- Fourthly: The Hungarian delegation wishes to single out the importance of Article 17 on "Consultations on preventive measures", according to which: "The States concerned shall enter into consultations, at the request of any of them and without delay, with a view to achieving acceptable solutions regarding measures to be adopted in order to prevent or minimize the risk of causing significant transboundary harm..."(Italics added)
Last but not least let me make some comments concerning Article 21 on the "Nature and extent of compensation or other relief". We do agree with the major thrust of this Article, according to which "The State of origin and the affected State shall negotiate at the request of either party on the nature and extent of compensation or other relief for significant transboundary harm..." We are also in agreement with the provision that during negotiations all those factors have to be taken into account which are being referred to in Article 22.
At the same time we have certain misgivings concerning the reference in Article 21 to "the principle that the victim of harm should not be left to bear the entire loss." In the commentary to this Article it is stated that "The principle that the victim of harm should not be left to bear the entire loss, implies that compensation or other relief may not always be full. There may be circumstances in which the victims of significant transboundary harm may have to bear some loss."
May I respectfully disagree with this view. We do not find in the commentary any convincing argument about the nature and genesis of this "principle". We do believe that more attention should be given to this particular question which may be used as a pretext to victimize neighbouring States through unbridled activities which may cause significant transboundary harm.
Chapter VI: Reservations to treaties
The Hungarian delegation wishes to express its appreciation to Professor Alain Pellet for his excellent work on this very difficult issue. We are particularly grateful to him for his second report and we agree with the identification of the complex and delicate problems in this field. We find very convincing his thoughtful views concerning the application of the Vienna regime to human rights treaties.
We regret that - owing to the lack of time - the Commission was unable to consider the second report and the draft resolution submitted by the Special Rapporteur. Under these circumstances the Hungarian delegation prefers to make its detailed comments and observations only next year when the views of the Commission will already be known on this subject matter.
Chapter VII A: Programme, procedures and working methods of the Commission and its documentation
The Hungarian delegation wishes to place on record its appreciation of the work done by the International Law Commission on the examination of its own procedures and working methods as requested by the General Assembly resolutions 50/45. We would like to commend in particular, the excellent Report prepared by the Planning Group of the Enlarged Bureau which worked under the able stewardship of Mr. Robert Rosenstock. We should not forget, either, that the Planning Group has been very ably assisted in this field by its informal working group headed by Professor James Crawford.
In general, my delegation would like to endorse the conclusions and recommendations of the ILC. At this juncture we wish only to reaffirm our full support for the following basic positions, taken by the Commission:

- We share the view that a strict distinction between the codification and progressive development of international law has proved unworkable and cannot be maintained. The Commission has rightly chosen the path of proceeding, in a pragmatic way, "on the basis of a composite idea of codification and progressive development."
- The Commission has to continue focusing, primarily, on public international law. At the same time in our view it should follow and study the proceedings of UNCITRAL and the Hague Conference on Private International Law, chiefly in order to avoid duplication of work, yet, at the same time, it ought to obtain more information about a growing "gray zone" between public and private international law.
- We do agree with the Commission's findings that there is "a risk of fragmentation in international law and practice." This fragmentation could and should be counteracted by a closer cooperation between bodies with a special law-making mandate (e.g. the Legal Sub-Committee of the Committee on Peaceful Uses of Outer Space) or with institutions having a special competence in a given field (e.g. the Human Rights Commission, United Nations Environmental Programme, etc.). (ILC Report p. 207)
- In the process of the codification and progressive development of international law more attention should be given to the activities of various non-governmental scholarly bodies, such as the International Law Association, as well as to that of the regional consultative committees, or, to the valuable activity of the Venice Commission (European Commission for Democracy through Law, established by the Council of Europe. In this connection I would also remind to the important role of the Council of Europe and its organs, like, among others, the Committe of Legal Advisers on Public International Law (CAHDI), in the field of promoting the application of international law and strengthening the institutions of the rule of law.
The Hungarian delegation is also in agreement with a great number of other findings and specific recommendations of the Commission. In particular we wish to draw attention to the following major issues the correct solutions of which will beneficially affect the fruitful activity of the Commission in the years to come:

- The relations between the Commission and the General Assembly (Sixth Committee)
- The role of the Special Rapporteurs, including the need for a standing consultative group,
- The Commission's relationship with other bodies (within and outside the United Nations),
- The possible revision of the Statute of the ILC, with a special regard to the fiftieth anniversary of the Commission in 1999.
Finally, the Hungarian delegation would like to make a very brief comment on the long term programme of work of the Commission.
We can concur with the topics which have been identified as appropriate subject matter for codification and progressive development, especially with the questions of diplomatic protection and the unilateral acts of States. As to the ownership and protection of wrecks beyond the limits of national maritime jurisdiction, we have certain doubts. We wonder whether this issue would be better placed partly in the review-procedures of the related conventions on Salvage and partly within the framework of the International Maritime Organization.

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