GA/L/3154

RIGHT OF STATES TO COUNTER WRONGFUL ACTS IS DISCUSSED AS LEGAL COMMITTEE BEGINS REVIEW OF INTERNATIONAL LAW COMMISSION REPORT

Balance between Legitimacy and Misuse of Such Measures is Urged

The Sixth Committee (Legal) this morning began its examination of the annual report of the International Law Commission, concentrating on the Commission�s long-standing efforts to adopt a framework of rules to govern the responsibility of States for an internationally wrongful act.

The issue of countermeasures as an instrument of compliance or redress for internationally wrongful acts, embodied in the 59-article draft text on State responsibility, drew comments from several speakers.

China believed that countermeasures could be a legitimate means available to a country, but felt there must be appropriate restrictions to strike a balance between legitimacy and the need to curb their misuse.

The representative of the United Kingdom expressed serious concern with some provisions regulating resort to countermeasures, saying the objective must be to facilitate the resolution of disputes, rather than complicating them.

The representative of the United Republic of Tanzania said that countermeasures were a threat to small and weak States. It was misleading to claim that their purpose was instrumental, meant to induce compliance by the State committing a wrongful act. It was patently clear from the commentary to the draft articles that countermeasures could be punitive to satisfy the political and economic interests of the State claiming to be injured.

Chusei Yamada, Chairman of the 34-member expert Commission, said the Commission�s Drafting Committee had designed an operational system secured by conditions and limitations intended to maintain countermeasures within generally acceptable bounds. The Commission intended to finalize its second reading of the topic by its next session. He emphasized the importance of comments by governments on the draft articles on State responsibility appended to the Commission�s report.

Also making statements were the representative of South Africa (on behalf of the Southern African Development Community), Germany and Japan.

Sixth Committee - 1a - Press Release GA/L/3154 14th Meeting (AM) 23 October 2000

The Commission was established by the General Assembly in 1947 to codify customary international law and to promote the codification and progressive development of international law. Its experts represent the world�s principal legal systems.

At its last session, the Commission also dealt with such issues as prevention of transboundary damage from hazardous activities, diplomatic protection, unilateral acts of States and reservations to treaties. Those topics will be focused on later in the session.

The Sixth Commission will meet again at 10 a.m. tomorrow, 24 October, to continue its examination of the report of the International Law Commission, specifically the section dealing with State responsibility.

Sixth Committee - 3 - Press Release GA/L/3154 14th Meeting (AM) 23 October 2000

Committee Work Programme

The Sixth Committee (Legal) met this morning to examine the report of the International Law Commission on its year 2000 session, which took place in two parts, from 1 May to 9 June and 10 July to 18 August, Geneva (Document A/55/10).

Among the highlights of the fifty-second session recorded in the 339-page report, the Commission took note of the provisional adoption by its drafting committee of the entire draft articles on State responsibility. The articles covered such issues as general principles, forms of reparation and invocation of the responsibility of a State. It adopted, on first reading, a further five draft guidelines pertaining to the first chapter of the Guide to practice on reservations to treaties.

On the question of �International liability for injurious consequences arising out of acts not prohibited by international law (prevention of transboundary damage from hazardous activities)�, the Commission examined the third report of the Special Rapporteur. This contained a draft preamble and a revised set of draft articles on prevention, along with the recommendation that they be adopted as a framework convention. The Special Rapporteur addressed questions such as the scope of the topic, its relationship with liability, the relationship between an equitable balance of interests among States concerned and the duty of prevention, as well as the duality of the regimes of liability and State responsibility. The draft preamble was referred to the Commission's drafting committee.

On the subject of �diplomatic protection�, the Commission considered the first report of the Special Rapporteur dealing with issues concerning definition and scope of the subject, and the nature and conditions under which diplomatic protection might be exercised, in particular the requirement of nationality and the modalities for diplomatic protection.

The Commission examined the third report of the Special Rapporteur on �Unilateral acts of States� with several proposals, including a new draft article on definition of unilateral acts and a new text on the capacity of States to formulate unilateral acts. The Commission decided to refer the new provisions to its drafting committee and a new draft article 5 to the working group on Unilateral Acts of States.

Also during the session, the Commission considered the fifth report of the Special Rapporteur on �Reservations to treaties�, concerning the alternatives to reservations and interpretative declarations and the formulation, modification and withdrawal of reservations and interpretative declarations. The Commission adopted five draft guidelines pertaining to reservations made under exclusionary clauses, unilateral statements made under an optional clause, unilateral statements providing for a choice between the provisions of a treaty and alternatives to reservations and interpretative declarations.

The Commission, acting on paragraph 13 of General Assembly resolution 54/111, listed specific issues on which it would like comments from Governments either in the Sixth Committee or in written form.

It approved the following topics for inclusion in its future programme of work as recommended by a planning group: responsibility of international organizations; effects of armed conflict on treaties; shared natural resources of States; expulsion of aliens; risks ensuing from fragmentation of international law.

The 34-member expert Commission was established by the General Assembly in 1947 to codify customary international law and to promote the codification and progressive development of international law in areas where customary law did not exist or had not sufficiently evolved. Its experts represent the world�s principal legal systems.

International legal instruments that have emerged from the Commission�s work include: the 1961 Vienna Convention on Diplomatic Relations; the 1963 Vienna Convention on Consular Relations and the 1969 Convention on the Law of Treaties. Others also include the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents; and the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character.

The other instruments include the 1978 Vienna Convention on Succession of States in Respect of State Property; Archives and Debts; the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations; and the 1997 Convention on the Non- navigational Uses of International Watercourses.

The Sixth Committee will begin its examination of the Commission's report with the chapter on State responsibility. At its first session in 1949, the Commission selected State responsibility among topics it considered suitable for codification. It decided to begin the study of the topic at its seventh session in 1955 and appointed a Special Rapporteur for it.

Statements

MAURO POLITI (Italy), Chairman of the Sixth Committee, acknowledged the exceptional contribution of the International Law Commission in the development and codification of international law. The Commission�s important works and achievements were recognized by governments, as well as by the academic community, he stated.

The Commission�s report had always been a high point in the Sixth Committee. The exchange of views on the Commission�s annual report had always been substantive, interesting and intellectually stimulating. He expected this year�s debate also to have those qualities, particularly in view of the fact that the Commission had a very productive session and had made substantial progress in a number of topics.

CHUSEI YAMADA, Chairman of the International Law Commission, introducing the Commission's report, said it had been a productive session with substantial progress being made on a number of topics, particularly on the subject of State responsibility. The Commission intended to finalize its second reading of that topic by its next session. The Commission's Drafting Committee had provisionally adopted on second reading the draft articles on State responsibility.

The Commission's work on State responsibility, which began in 1955, had spanned most of the second half of the twentieth century, he said. Its provisional adoption of the draft articles on first reading took place from 1973 to 1996. Given the importance of the topic, and the recent significant developments in the law of State responsibility, the Commission felt it would be useful to receive comments by Governments on the draft articles with a view to its completion of the second reading in 2001.

The report of the Drafting Committee containing the entire draft articles on State responsibility, as well as the introductory statement of the Chairman of the Drafting Committee concerning the draft articles, had been transmitted to Governments on 21 August 2000. In addition to the comments made within the context of the Sixth Committee's debate, he drew attention to the request for written comments to be submitted to the Secretariat by 31 January 2001. He said it would be the last opportunity for the Commission to take into account the views of Governments before finalizing the second reading of the draft articles.

The Chairman then provided a brief overview of the general content and structure of the draft text -- consisting of 59 articles and divided into four Parts -- highlighting some of the major issues covered. He also dealt with five major issues addressed primarily in Part II and Part II bis of the draft articles: general principles relating to the notion of injury and the necessary causal link; satisfaction and interest in relation to the various forms of reparation; content and consequences of serious breaches of essential obligations to the international community as a whole. The others were definition of the injured State for purposes of the draft articles; and the conditions and limitations relating to countermeasures. He said article 39, concerning interest in relation to reparation, was added to the draft in response to the suggestion of a number of governments.

He drew attention to two important general principles concerning the notion of "injury" and the necessary causal link. First, the notion of "injury", for the purposes of the draft articles, was broadly defined in article 31 [42], paragraph 2, as "any damage, whether material or moral, arising in consequence of the internationally wrongful act of a State". He said the Drafting Committee decided not to distinguish between "injury" and "damage" in the absence of agreement concerning the distinction. Secondly, the Drafting Committee decided that it would not be prudent or accurate to specify the necessary causal link since that requirement was usually addressed in the primary rules and was therefore not the same with respect to every breach of an international obligation.

He then commented on the second issue dealing with the notions of satisfaction and interest addressed in articles 38 [45] and 39 in Chapter II of Part II of the draft text. He said satisfaction was frequently of a symbolic character. Taking into account past practices in which unreasonable forms of satisfaction were demanded, satisfaction, he said, should be subject to some limitations. Article 39 on "interest" was added to the draft in response to the suggestion of a number of governments. Interest was not an autonomous form of reparation, nor was it necessarily part of compensation in every case. It might be required in certain cases in order to provide full reparation.

The Chairman commented on the third issue, which dealt with the content and consequences of serious breaches of essential obligations to the international community as a whole -- the subject matter of Chapter III of Part II of the draft. The first-reading draft dealt with the subject of international crimes that proved controversial both in the Commission and among governments. The views were divided as to the fundamental question of whether a distinction between two types of breaches of international obligations was justified. The Drafting Committee decided to delete the notion of international crimes and instead addressed serious breaches of obligations towards the international community as a whole.

Article 41 provided that Chapter III applied to State responsibility for serious breaches of obligations owed to the international community as a whole and essential for the protection of its fundamental interests. The Chairman listed three conditions -- the obligation must be owed to the international community as a whole; the obligation must be essential for the protection of the fundamental interests of the international community as a whole; and the breaches of such obligations must be serious.

The fourth issue the Chairman dealt with covered the notion of an injured State addressed in articles 43 [40] and 49, paragraph 1. He said the definition of an injured State contained in the first-reading text was problematic because it was very broad and partly inconsistent. Many States could claim to be injured and, therefore, entitled to claim the whole range of remedies available under the articles. The identification of the injured State in a bilateral relationship did not involve conceptual difficulties, he said. In a multilateral relationship, the wrongful act might specifically affect one or more States to which obligation was owed.

The Chairman then turned to the fifth major issue concerning countermeasures addressed in article 23 [30] of Part I as well as Chapter II of Part II bis. Article 23 [30] provided that acts taken as countermeasures were per se wrongful acts, but their wrongfulness was precluded if two conditions were met. These were that countermeasures might be justified only in relation to the responsible States; and that they might be taken only under the conditions set out in articles 50[47] to 55[48] contained in chapter II of Part II bis. The Drafting Committee designed an operational system secured by conditions and limitations intended to maintain countermeasures within acceptable bounds, he said.

The Chairman concluded his statement by again emphasizing the importance of comments of Governments on the draft articles on State responsibility.

ALBERT HOFFMAN (South Africa), speaking on behalf of the Southern African Development Community (SADC), said the topic of State responsibility had been on the agenda of the International Law Commission for more than 40 years. Addressing what he considered some of the more controversial articles, he said that in the absence of a central law enforcement agency, countermeasures had become a matter of considerable concern, some would even say a necessary evil. The draft articles were rightly concerned with the impositions of limits on countermeasures. Article 51 made it clear that the most fundamental obligations, involving the prohibition on the use of force, the protection of human rights, and the inviolability of diplomatic and consular agents could not be derogated from, in the taking of countermeasures. The requirement of proportionality was also recognized. Those qualifications ensured that countermeasures would be marginalized and resorted to only in exceptional cases.

In a compromise, several of the articles avoided the use of the controversial term �crime�, but nevertheless recognized that certain particularly serious wrongful acts might give rise to a community response. Noting that a section on settlement of disputes had not been included, he urged the Commission to give serious consideration to the matter when the future form of the draft articles was agreed upon.

MICHAEL WOOD (United Kingdom) said it was good to see that the Sixth Committee retained its special collegiate atmosphere, quite different from the other Main Committees. By contrast with those of colleagues in other Committees, the Sixth Committee�s aims were, for the most part, long-term and were normally not directly influenced by the daily drama on the world scene. Nowhere was that more true than in the annual debate on the report of the Commission. The interaction between the Committee and the Commission was a vital element in the process of law-making at the international level. Valuable improvements had been made to the Commission�s working methods. He supported the Commission�s wish for split sessions, as well as its proposal for the length of sessions. He urged governments to contribute to the International Law Commission Fund, saying that a rather modest financial contribution could have a disproportionate impact in terms of heightening awareness of, and enthusiasm for, the practice of international law.

Concerning new topics for the Commission, he said there was particular merit in the first topics set out in the report, as they were areas in which practical problems could arise and in which there might be a need for clarification of the law. He cited in particular, �responsibility of international organizations� and �the effect of armed conflict on treaties�. He suggested that the topic on �risks ensuing from fragmentation of international law� might be better suited to description and analysis rather than an attempt at solution by the Commission.

He prefaced his comments on the draft articles on State responsibility by saying they were for the moment preliminary remarks, and more detailed views would be submitted in writing. He expressed serious concerns about certain provisions on Parts II and II bis, saying that certain aspects of the proposed regime for governing countermeasures departed from international law. After citing doubts about several provisions of the relevant articles, he said some of the proposals were potentially highly destabilizing of treaty relations. While welcoming the inclusion of a draft article recognizing the taking of lawful countermeasures as a circumstance precluding wrongfulness, he expressed serious concern with some provisions regulating resort to countermeasures. The objective of the provisions on countermeasures must be to facilitate the resolution of disputes rather than serve to complicate them, he said. The Commission must aim to avoid vagueness and duplication. He urged the Commission to revise some of the provisions to reflect accurately existing law on the subject. The aim of a multilateral convention on the subject was not a realistic goal nor would it be appropriate for the topic.

XUE HANQIN (China) said the question of countermeasures had been one of the most controversial aspects of the regime of State responsibility and was a focus of contention at the latest session of the Commission. She believed countermeasures could be a legitimate means available to a country. However, past and possible future abuses of countermeasures, and recognition of the right of an injured country to take countermeasures, must be accompanied by appropriate restrictions on their use, so as to strike a balance between legitimacy and the need to curb their misuse. China had previously pointed out the need to further clarify and improve upon the provisions of articles 30, 47 and 48. There had been some welcome improvements, but there was room for further improvement on the entire text on countermeasures. She recommended the deletion of article 54 on collective countermeasures and article 49 on the invocation of responsibility by non-injured States, saying they complicated the already complex question of countermeasures, making it even more controversial.

The introduction of the concept of State �crimes� in international law would encounter insurmountable obstacles both in theory and in practice, she said. Rejection of the concept of State �crimes� would in no way diminish the personal legal responsibility of the person committing an internationally wrongful act. She favoured the differentiation between varying degrees of the gravity of a breach. She did not favour the deletion of all the articles concerning dispute settlement, and suggested that the Commission continue its consideration of those articles and submit a revised text to the Sixth Committee.

TUVAKO N.MANONGI (United Republic of Tanzania) underscored the continuing concern of his delegation regarding primarily the issue of countermeasures as part of the regime of State responsibility. He said it was encouraged that, in some respects, the Special Rapporteur appreciated the potential imbalance in the application of countermeasures as an instrument of compliance or redress. Western States resorted to countermeasures as a practice, as noted by the Special Rapporteur. Some among non-Western States would consider the project as primarily a means to legitimize such practice and that the focus, therefore, was on the development of legal rules on State responsibility based on a Western conception and practice.

Countermeasures were a threat to small and weak States, he said. It was misleading to claim that their purpose was instrumental, meant to induce compliance by the wrongdoing State. It was patently clear from the commentary to the draft articles that countermeasures could be punitive to satisfy the political and economic interests of the State claiming to be injured. The United Republic of Tanzania awaited with interest the Commission�s proposals on dispute settlement mechanisms. It would like the Commission to take an approach that sought to tame resort to countermeasures, by prescribing limits rather than to leave them open-ended for potential abuse. Similarly, to alleviate the concerns of small States, he said the Commission should resort to former article 50 on �prohibited countermeasures� which was elaborate and clear.

His delegation saw no compelling justification for the deletion of what used to be paragraph (b) of the article prohibiting countermeasures by an injured State, namely, �resort to extreme economic or political coercion designed to endanger the territorial integrity or political independence of the State which has committed the internationally wrongful act�.

On the question of �international crimes�, he said his delegation saw no reason why examples of serious breaches should not be reflected in the draft articles. In its view, those examples (reflected in the first-reading article 19) were helpful in clarifying incidents of international wrongful acts giving rise to the responsibility of a State.

GERD WESTDICKENBERG (Germany) said his country welcomed the deletion of the notion of �international crimes� in former article 19 of the draft articles on State responsibility. The draft article and its reference to �international crimes� would have blurred the distinction between State responsibility, on the one side, and individual responsibility, on the other. He said the decision on individual criminal responsibility should clearly be reserved to national criminal courts, the ad hoc international criminal tribunals, and the future International Criminal Court.

Germany, however, acknowledged the existence of fundamental norms of international law, the breach of which was so grave that it was of concern to the international community as a whole and went beyond the effects on the directly injured State. Article 41, as proposed by the Special Rapporteur, was a decisive step in the right direction. He saw the need, however, for a more precise definition that would take into account those special breaches of ergo omnes obligations.

His delegation attached particular importance to the role of humanitarian law and peremptory norms of international law and the limits of countermeasures (Articles 21, 23, 51 I) resulting from it. He also said the limits posed to countermeasures by article 53, containing the obligation of prior negotiations and a regulation on interim measures, was a particular point of interest to his delegation.

He reiterated his Government�s conviction in the need for a clear definition of peremptory norms in international law protecting fundamental humanitarian values -� the prevention of torture, genocide and slavery. Germany would like both articles 21 and 23, concerning such peremptory norms, to be interpreted in that direction. The exclusion of the obligation to respect the inviolability of diplomatic and consular agents from the scope of peremptory norms in no way affected its character as part of customary international law, he said. SHOTARO YACHI (Japan) said his comments were of a preliminary nature and full comments would be submitted in writing . Concerning Part II, while he welcomed the enhanced clarity of the draft articles, he had to question whether they were not still too �innovative�. He supported the Commission�s general direction to finalize the draft articles as a non-legal binding guideline or declaration. The draft articles should serve as a reference and guideline, informing a State of its rights and obligations if it committed an internationally wrongful act or if another State breached its obligations towards it. The draft should, thus, function to secure legal stability and predictability in international relations. More importantly, though, the draft should also serve as a general standard for international courts to refer to in actual international disputes. The draft should not contain �innovative� or �revolutionary� elements that went beyond progressive development. Such elements would entail a new political judgement and would need to be discussed and decided upon by governments. Such elements should be justified only by legislation, and they could not be legitimately stipulated in the form of a non- binding guideline of principles, as was sought by the Commission.

Turning to specific issues, he said Japan had consistently objected to the introduction of the ambiguous notion of �international crime�, which was not established under international law. He appreciated that the term had been deleted from the text, but said that a careful examination of the text showed it was still haunted by the ghost of �international crime�. Articles 41 and 42 had not succeeded in departing from the notion of �international crime� and had no place in the text.

Provisions on countermeasures also required the most careful and strict examination. He referred to article 54, paragraph 1, which allowed States other than injured States to take countermeasures. While it might make certain sense, in that unlawful situations would not be left unresolved in cases where an injured State was not able to take countermeasures by itself, the risk of abuse might outweigh the benefit. He also expressed concern about the procedural requirements under article 53, in relation to the taking of countermeasures. In the context of the need to distinguish between �an injured State� and �an interested State�, he said the distinction between integral obligation and obligation to establish collective rights should be clarified in the commentary.

State responsibility was an important but extremely difficult subject, he said. If the Committee pursued logical perfection, it might fail to grasp the reality of State practice. The result might be logically flawless, but useless in practice. The Committee should produce general principles of State responsibility that States could comfortably rely on, just as navigators had always relied on the North Star.

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