GA/L/3155

ROLE OF SINGLE STATE AS ‘INTERNATIONAL POLICEMAN’ NEEDS CONTROL, ASSEMBLY’S LEGAL COMMITTEE TOLD IN LAW COMMISSION DEBATE

Botswana Says Such Action Should Not be Unilateral; Other Speakers Join Review of Countermeasures and State Responsibility

Speakers in the Sixth Committee (Legal) this morning continued their contributions to the drafting by the International Law Commission of rules on State responsibility in internationally wrongful acts. Countermeasures, the notion of an injured State, and the concept of international crimes were identified as areas requiring most attention by the Commission.

The representative of Botswana said the role of a “one State international policeman” should be controlled. At least a State should take countermeasures only with the concurrence of the State or States directly affected, or with the concurrence of others, but not unilaterally. Efforts should be made to avoid a situation where a State might, as it were, be judge and jury.

The Nordic countries said it was essential that strong safeguards were established against possible abuses of countermeasures, according to the representative of Denmark, speaking on their behalf. He said legal measures favoured powerful States, which in most instances were the only ones with the means to avail themselves of the use of countermeasures to protect their interests.

The speaker for Argentina said the International Law Commission had succeeded in moving forward on two of the most controversial issues -- the concept of State crime and the issue of countermeasures. He supported deletion of the term “state crime”, since its inclusion had led to conceptual confusion. Countermeasures should be used only on an exceptional basis, he said, and a collective one even more so.

Also making statements in the debate were the representatives of France, Iran, Israel, India, Guatemala, Czech Republic, the Netherlands and South Africa (on behalf of the Southern African Development Community).

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.

Sixth Committee - 1a - Press Release GA/L/3155 15th Meeting (AM) 24 October 2000

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/3155 15th Meeting (AM) 24 October 2000

Committee Work Programme

The Sixth Committee (Legal) met this morning to continue its examination of the report of the International Law Commission on its year 2000 session, with focus on State responsibility.

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. (For background information on the Commission’s report, see Press release GA/L/3154 of 23 October)

Statements

RONNY ABRAHAM (France) expressed disappointment at the late issuance of the report, which, he said, hampered detailed comments on the issues. While dissemination of documents on the Web was convenient, it should not be considered as a substitute for publication of documents in all official languages. The three most difficult questions of the draft articles concerned the notion of an injured State, references to crime, and countermeasures. France was supportive of the changes to the draft and commended the quality of the changes.

Referring to article 40, he said there was no precise definition of an injured State; nor was there a reference to material or moral damage suffered by a State as a result of an internationally wrongful act by another State. The first part of the definition of an injured State was a step in the right direction. It would be inappropriate to allow a third State to intervene in the case of bilateral obligation if the injured State did not want to react.

As to the concept of “international crime”, he said he appreciated the desire to identify some breaches as more serious than others, despite the difficulty of the task. However, he continued, international law had moved on since the draft articles were adopted at their first reading. The Statute of the International Criminal Court made it possible to prosecute and judge individuals responsible for certain grave crimes. That did not preclude the possibility of engaging a State’s responsibility according to traditional rules of attribution of responsibility. Establishing the International Criminal Court did not mean the opportunity to prosecute a State would be lost. He said he welcomed the change in thinking on the matter of “international crime”.

In article 41, the main problem was not with the definition itself but its implications. Paragraph 1 and lines (a) and (b) of paragraph 2 were useless; furthermore, section (c) of paragraph 2 was ambiguous. If articles 41 and 42 were kept, the wisdom of which was arguable, it raised the issue of whether they should not be placed in a different part of the text.

Turning to countermeasures, he said he welcomed the decision to cut the links between the adoption of countermeasures and obligatory arbitration. In general, he believed countermeasures should not be discussed in a draft on the responsibility of States; rather, the subject was worthy of a special discussion by the Commission. He said he was pleased that the draft no longer included provisions on the settlement of differences, as their inclusion was unrealistic and inappropriate. He suggested that States start thinking seriously about the form the draft articles should take. While France had not yet decided which option would be best, he believed that the adoption of a declaration by the Assembly, with the draft articles annexed, as was supported by some States, would not be the most appropriate solution.

SAEID MIRZAEE-YENGEJEH (Iran) said countermeasures should not, and could not be employed by powerful States to coerce or punish small States. As stipulated in paragraph 2 of article 50, he said, resort to countermeasures were limited to the suspension of performance of one or more international obligations of the State taking those measures towards a responsible State. The provision required further clarification and improvement. With regard to paragraph (b) article 51 -- obligations not subject to countermeasures -- he said his delegation preferred the formulation used in the first reading.

He said the formulation reflected commonly used language in General Assembly resolutions and remained an important principle of international law, to which developing States attached great importance. He said article 52, on proportionality of the countermeasures to the injury, should be retained, although it needed to be developed. Regarding article 53 -– conditions relating to resort to countermeasures –- he said a simple claim of the commission of an internationally wrongful act could not provide sufficient grounds for an injured State to take countermeasures against an allegedly responsible State. Such a claim must be substantiated by credible evidence, and must be clearly stipulated in the article, he added.

He proposed that in cases of serious breaches of essential obligations owed to the international community as a whole by any State, countermeasures should be taken through coordination in the United Nations, which embodied almost all States of the international community. The time had come for the final form of the draft articles and its adoption to be pondered upon. It would be ideal if the draft articles were adopted in the form of a convention.

That would require the addition of a chapter on the peaceful settlement of disputes, and should also be adopted at a United Nations-sponsored international conference. Another suitable form of adoption could be as a declaration by the General Assembly. Every effort should be made for the adoption of the articles by the general agreement of Member States. The Commission, by producing fairly balanced articles incorporating the views of all Member States, could facilitate, to a large degree, the achievement of that objective, he said.

ALAN BAKER (Israel) said it was important that focus was placed on codification rather than progressive development of rules on State responsibility. States would be reluctant to support the regulation of such fundamental matters if it were not an accurate reflection of the existing state of customary international law. With respect to article 16, his delegation had reservations about the wording of subparagraph (b) according to which a State which facilitated or assisted in the violation of an obligation by another State did not commit a wrongful act, if that particular obligation was not binding upon it.

In the light of the need for the international community to encourage respect for international law, he said, it seemed inappropriate to adopt language that effectively sanctioned assistance to wrongdoers in certain cases. The wording of article 27 that avoided that inference seemed preferable. He expressed similar reservations to articles 17 and 18. His delegation regretted that the consent provision of article 20, which represented an important principle of international law, had not been retained.

On the question of interest, covered in article 39, he said it should be viewed as an integral part of compensation, and incorporated into the existing article on the topic. His delegation welcomed the decision to set aside the distinction between crimes and delicts, and the refining of the distinction between States directly affected by a breach and those with an interest in the performance of the obligation. The change was necessary to ensure that the draft articles accorded with contemporary State practice and customary law.

He said the draft articles, however, did not go far enough in applying the consequences of the change to the issue of the invocation of responsibility. His delegation considered it both inappropriate and unwise to impose an unspecified legal obligation upon third States. In its view, customary law allowed interested States, as opposed to injured ones, to call for the cessation of the unlawful conduct and for reparation to be made to the injured State.

He recommended that all controversial aspects related to the invocation of responsibility by non-injured States, and not just the crime-delict distinction, should be set aside and reserved for separate treatment pursuant to developments in international law and practice. That could be done by way of a saving clause that would not diminish the usefulness or impair the general structure of the draft articles as a whole, he said.

PREM GUPTA (India) said that while the work done on the articles was commendable, several issues still required careful and in-depth consideration -- for example, State responsibility for breaches of obligations ergo omnes and the overlap between violation of multilateral obligations and the legal consequences for wrongful acts, as well as their relationship with the Charter. He said that when finalizing the draft articles, the Commission should be careful not to endorse, by implication, the concept of State liability for transboundary damage arising out of risk-bearing activities.

The subject of countermeasures was fraught with possibilities for serious abuse. It would have been preferable to leave the matter out of the draft articles so that the specific issues concerning the measures could and should be judged under general international law on merits, taking into consideration the provisions of the Charter. He recognized, however, that the Commission had attempted to regulate that competence by prescribing specific and well-defined conditions and limitations. It was correctly stated in the draft articles that the objective of any countermeasure should be only to induce a State to comply with the obligations under part III and not to be used to punish a State.

He spoke of the distinction between an injured State defined under article 43, dealing with integral obligations, and a State other than the injured State defined under article 49, where the obligation breached was established for the protection of a collective interest. He said it appeared to turn on the phrase “is of such a character as to affect” used in article 43. The draft articles suggested that in the case of integral obligations, all States were affected, and, in the latter case of “collective interest”, States not directly affected were only interested in the performance of the obligation. He contended that that was too subtle a distinction to distinguish adequately between the two categories of States. The difference between integral obligation and collective interest also needed to be further elucidated to avoid unnecessary confusion and possible abuse.

Referring to provisions on serious breaches of essential obligations to the international community, he said it was for the international community to determine, by a collective decision, the essential obligations for the protection of its fundamental interests. That situation required decisions which had been arrived at in forums which admitted universal participation of States. Furthermore, such decisions should be taken with unanimity, or near unanimity. He, therefore, shared the view questioning the suitability and desirability of the inclusion of article 41.

ROBERTO LAVALLE-VALDES (Guatemala) proposed an amendment to article 2 of chapter IV, on elements of an internationally wrongful act of a State, to tie in with Chapter V. He said he had doubts about paragraph 2 of article 10 on conduct of an insurrectional or other movement. He also expressed doubts whether rules in chapter IV were secondary in nature. He said he opposed the wording of paragraph (a) of article 16, covering aid or assistance in the commission of an internationally wrongful act.

He said article 21 on compliance with peremptory norms should contain reference to decisions taken by the Security Council under Chapter VII of the Charter. He said he had difficulty concerning chapter II of the second part of the draft articles. He said reparations should take three forms -– restitution, compensation and satisfaction. Despite the fact that interest, provided for in article 39, could be theoretically distinguished from compensation, one could not deny its close link with it. Interest should be limited to cases where an injured State was unable to act.

He expressed concern over the use of countermeasures, noting that it would accentuate inequality between States and the possibility of a chain reaction in certain cases. He supported the restoration of the initial draft prohibiting the use of extreme measures in a manner that would jeopardize the territorial integrity and political independence of States.

IVO JANDA (Czech Republic) said his delegation supported the incorporation of the principle of assurances of non-repetition into the articles on State responsibility. His delegation had doubts about the relevance of the distinction between the political and legal nature of the principle. He said the issue should be dealt with in the context of the Commission’s work on unilateral acts. Cessation and non-repetition should be treated as two separate concepts.

On the draft provisions of the articles on reparation, he said, “unmerciful insistence” on full reparation could do more harm than good. The decision on the amount of reparations must be made with full consciousness, both of the specific context of each case and the fact that the injured State should not blindly abide by a theoretical legal concept at all costs. On the other hand, he said, mistakes of the past did not prove the legal principle of full reparation to be wrong. The principle itself had no defects and there was no reason to depart from it. Restitution should remain a primary means of reparation, he said, adding that compensation should be a secondary instrument only when a practical solution was impossible. On the concept of satisfaction as a form of reparation, he said his delegation was concerned that the text of the Drafting Committee left out the concept of non-material or moral injury. His delegation was convinced that satisfaction was especially tailored to the reparation for an injury not having material character. In the case of material injury, satisfaction could be an additional form of reparation, as an equal alternative to restitution and compensation. He said the link between satisfaction and non-material injury should be kept.

His delegation proposed the replacement of the term “mitigation of responsibility” introduced by the Special Rapporteur in his report with the “mitigation of legal consequences of an internationally wrongful act”.

JOHAN LAMMERS (Netherlands) said he supported the deletion of the concept of international crime, since his Government was aware that it was a controversial issue. Its replacement with a chapter on “serious breaches” could be a compromise solution, to avoid jeopardizing what had been achieved so far. However, there remained a problem of definition. The deletion of the examples which had been listed in the text of the old article constituted the essence of the definition of the abandoned concept, and might be regretted. The definition of serious breaches had a bearing on other articles.

Referring to article 49, which restricted the entitlement of the State other than the injured State to seek reparation in the interest of the injured State, he said one would expect a provision allowing that type of State to seek from the responsible State compliance with the obligations of reparation under chapter III of part II -- namely, damages reflecting the gravity of the breach in the interest of the injured State.

He said his Government questioned the propriety of making a distinction, as in article 42 in conjunction with article 49, between the injured State and States other than the injured State. One could argue that, insofar as serious breaches of essential obligations to the international community as a whole were concerned, all States were “injured States”. This would remain the case even though a distinction might be made between a State or States which were specifically affected by the serious breach concerned and all other States which might be considered to be not specially affected, but in a more abstract and legal fashion.

Concerning legal consequences, he said there should be a provision that serious breaches entailed the need for damages that exceeded the material losses as a consequence of a serious breach.

HANS KLINGENBERG (Denmark), speaking on behalf of the Nordic countries, said the present draft was a considerable improvement over the draft adopted at first reading in 1996. The recent adoption of the Rome Statute of the International Criminal Court setting out individual responsibility of persons committing the most serious international crimes suggested that the time had come to adopt the basic instrument on State responsibility. However, the wisdom of introducing the qualification of “knowledge of the circumstances” as the requirement in certain articles was not convincing. He recommended some streamlining, by merging articles 6 and 7 in chapter II and placing articles 8 and 9 in the context of articles 4 and 5.

He said it was an acceptable compromise in chapter III of part II concerning serious breaches, to settle the earlier distinction between delicts and crimes. The somewhat controversial article 49, providing for the invocation of responsibility by States other than the injured State, was acceptable to the Nordic countries, and indeed necessary in the context of the provisions concerning serious breaches of obligation to the international community as a whole.

The chapter on countermeasures, he went on, contained all the essential elements for regulating that sensitive issue, and it was placed in the right context of implementing State responsibility instead of in the chapter on circumstances precluding wrongfulness. He expressed satisfaction at the paragraph stating that the only purpose of any countermeasure must be that of inducing the wrongdoing State to comply with its international obligations. In other words, punitive actions were outlawed.

Nevertheless, he added, it was essential that strong safeguards were established against possible abuses. The legal institution favoured powerful States which, in most instances, were the only ones having the means to avail themselves of the use of countermeasures to protect their interests. In article 52 on proportionality, he said he preferred a more negative approach to the taking of countermeasures by substituting the words “be commensurate with” by “not be disproportionate to”, and leaving out the last qualifying part of the provision.

PHANDU SKELEMANI, Attorney-General of Botswana, said there was need for clarification in the drafting of rules concerning State responsibility. It would be a shame if they were not adopted in a form that the United Nations would find a good compromise to govern State behaviour in the future. He said the end document, reflecting the view of the majority of United Nations Member States, must be binding and accepted as a codification of established international law on State responsibility.

He wondered whether the wording of article 49 on invocation of responsibility by states other than the injured State was correct. The law must generally discourage States that had not been injured from involving themselves “and crying more than the bereaved”. No State should by itself, without the concurrence of at least a substantial number of other concerned States, invoke the responsibility of another State.

He said efforts should be made to create rules and regulations that would make states coexist civilly. It was to be expected that a state would want to, and should be allowed to, protect its interest when it was injured. States could not be prohibited from taking countermeasures when the right of self-defence was available.

He thought the Commission was on the right track in trying to govern or restrict the exercise of countermeasures. His delegation had a problem with allowing an interested, non-injured State to take countermeasures unilaterally without even consulting the affected State. To that extent, he thought article 54 was too wide. No State should be allowed to proceed in that manner; that would allow for abuse by powerful States against a weaker one that they might particularly dislike for other reasons. The role of the “one State international policeman” should be controlled. At least a State should take countermeasures only with the concurrence of the State or States directly affected, or with the concurrence of others but not unilaterally. He said efforts should be made to avoid a situation where a State might, as it were, be judge and jury.

HORACIO BASABE (Argentina) said the Commission had made notable advancements with the draft articles, he hoped it could complete its second reading at the next session. The Commission’s work on State responsibility was one of the highlights in the history of the Commission and in the process of codification of international law in general. As to the final form of the draft articles, his country favoured a convention if there was sufficient support. If not, then the draft articles could be adopted as a resolution of the General Assembly. A treaty, however, would have a greater normative impact than an Assembly resolution. Such resolutions, unfortunately, were sometimes forgotten.

He commended the Commission’s work on the subject, saying its deliberations were tremendously influential, given the importance of the matter and the quality of its work. The draft articles and the commentaries would be used in international jurisprudence and be accepted by the international academic community.

He said the Commission had succeeded in moving forward on two of the most controversial issues -- the concept of State crime and the issue of countermeasures. He supported deletion of the term “state crime”, since its inclusion had led to conceptual confusion. Argentina had always insisted on the importance of the need to distinguish between a State directly injured by a wrongful act and another state that had an interest. He was pleased at the distinction in article 49 -- in particular, the provision that gave an interested State the right to demand cessation and seek a guarantee of no repetition.

Countermeasures should be used only on an exceptional basis, he said, adding that collective countermeasures should be resorted to on an even more exceptional basis. Argentina would be submitting more detailed views in writing.

ALBERT HOFFMANN (South Africa), speaking on behalf of the Southern African Development Community (SADC), said that on the issue diplomatic protection, the newest topic before the International Law Commission, the Commission had correctly decided that the use of force to protect nationals fell outside the area of consideration; diplomatic protection was concerned with peaceful procedures for the protection of nationals.

Despite the several attempts at codification, he said, there was great uncertainty on many of the rules governing the admissibility of claims. The decision of the International Court of Justice in the Nottebohm Case (1955) -- which had been the starting-point for the examination of the subject -- raised more questions than it answered. The International Law Commission had shown some support for a rule allowing a State, in which a stateless person or refugee had lawful and habitual residence, to exercise diplomatic protection on behalf of such a person.

He said that was an exercise in progressive development, which accorded with developments in the field of human rights. On the other hand, it must be made clear that there was no obligation in that area, otherwise it might deter states from providing asylum to refugees and stateless persons. Since the topic was closely linked to state responsibility, SADC deemed it appropriate that the International Law Commission now direct its attention to it.

He said the issue of unilateral acts of States was a difficult one on which to draft a set of articles, because of the dearth of State experience and the limited number of judicial decisions. Nevertheless, it remained an important topic, and States should be more helpful in providing the Special Rapporteur with evidence of their State practice.

On reservations to treaties, he said the Vienna Convention on the Law of Treaties left many questions unanswered. The guidelines being prepared by the International Law Commission would, therefore, be of considerable assistance. Guidelines dealing with the distinction between reservations and interpretative declaration were particularly helpful because, in practice, States often resorted to both of those devices to limit their treaty obligations. The present disagreement between human rights monitoring bodies on the one hand (who maintained that they had competence on the compatibility of reservations) and the International Law Commission and some States on the other hand (who argued that it was for States alone to pronounce on the compatibility of reservations) should be resolved sooner, rather than later.

He said the draft articles on prevention of significant transboundary harm should not be revised in substance, as States had already shown support for the articles in a first reading. As to future work, the SADC believed priority should be given to responsibility of international organizations, the effect of armed conflict on treaties, expulsion of aliens, and legal aspects of corruption.

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