GA/L/3156

REVIEW OF DRAFT ARTICLES ON STATE RESPONSIBILITY CONTINUES IN ASSEMBLY’S LEGAL COMMITTEE

Differing Views on Form New Agreement Might Take; Rules, Procedure for Settlement of Disputes Discussed

Members of the Sixth Committee (Legal) spoke this morning of the eventual form that draft articles on State responsibility should take, as they continued their discussion of the report of the International Law Commission.

Most expressed flexibility on the matter, saying they were open to alternatives. The representative of Hungary said his delegation could support a code of State responsibility that would be similar to a convention in its content, but would take the form of a General Assembly declaration. A set of rules would represent a major breakthrough in the codification and progressive development of international law.

Iraq’s speaker said efforts at codification of State responsibility reflected the need for clear legal norms that prevented the adoption of mechanisms based on the concept of force, and not the rule of law. He was in support of a convention, but if that was not possible at this time, a declaration of principles by the General Assembly could serve as a step towards that goal.

Egypt questioned whether, after having invested more than 40 years, the International Law Commission should continue to follow the emerging trends on State responsibility or rush into the adoption of a set of rules which might not seem fit after a few years. In opposing the form of a binding agreement, the representative said the negotiation process leading to the conclusion of such an agreement would cause great harm to an already weakened text.

Several speakers expressed regret at the omission of provisions on dispute settlement in the draft articles. The representative of Spain, who said there was obvious interest on the part of States in a dispute settlement system, believed such mechanisms were the best way to correct ambiguous terms in the draft articles. The representative of Croatia said that if the adoption of the draft articles in the form of a convention should prevail, the chapter on the settlement of disputes should be an integral part of any such convention.

Also speaking were the representatives of New Zealand, Italy, Australia, Sierra Leone and Slovakia.

The Committee will meet next on Friday, 27 October, at 10 a.m. to continue its debate on the draft articles on State responsibility.

Sixth Committee - 3 - Press Release GA/L/3156 16th Meeting (AM) 25 October 2000

Committee Work Programme

The Sixth Committee (Legal) met this morning to continue its consideration of the International Law Commission’s long-term efforts to elaborate rules on State responsibility for internationally wrongful acts. The discussion is based on the annual report of the Commission contained in document A/55/10. (For background information on the Commission’s report see Press release GA/L/3154 of 23 October)

Statements

VICTORIA HALLUM (New Zealand) said the draft articles on rules of State responsibilities were now cohesive, consistent and self-contained. The draft was capable of attracting a broad level of consensus. Concerning article 30, she said an assurance of non-repetition was required, not only where there was a pattern of repetition, but also where there was a risk of repetition. Alternatively, an assurance was appropriate where the breach itself was particularly grave, even if the risk of repetition was minimal. On the issue of reparation, she said, the draft articles appropriately reflected the fundamental principle of full reparation for injury, whether that injury represented either material or moral damage. Restitution should be recognized as the best means of reparation, and compensation should be addressed by way of a flexible formula. She supported the principle of proportionality to prevent excessive demands in respect of satisfaction.

She said the attempt to create a distinction between “delicts” and “crimes” was unnecessarily divisive and distracted attention from the shared concern to provide for the situation where there had been a breach of an obligation owed to the international community. She therefore supported the removal of the previous article 19 and welcomed the new approach taken. The new part II bis represented two useful developments: first the conceptual shift from the responsible State to the right of a State to invoke responsibility; and, second, the distinction between injured States and States with a legal interest.

The use of countermeasures as a mechanism to induce performance of an obligation was recognized in customary international law. She therefore supported the inclusion of related provisions in the text. However, countermeasures must be both necessary and proportionate in their application. Countermeasures should not stand in place of dispute settlement. They should not be imposed if good faith attempts to resolve the dispute were continuing.

AURELIO PEREZ GIRALDA (Spain), in addressing the final form of the draft articles, said the work of the International Law Commission should not end as a declaration of the General Assembly, although he accepted that it might be a provisional end. A binding instrument must be the final objective. The rule on exhausting internal resources was essential to a regime of international State responsibility. Referring to article 45, he said the inclusion of “exhaustion of domestic resources” as one of the conditions for admissibility of a claim could lead one to believe it was exclusively procedural in nature. Article 56 should be drafted in positive language and should contain a reference stating that the existence of specific regimes could not prevail over the norms of binding international law.

On articles 41 and 42 on serious breaches of obligations, he said the name was not as important as the content. It was not possible to overcome the opposition of many States to the use of the term “international crime”. The identification of illicit acts must be based upon the agreement of States. The greatest difficulty lay in establishing a system of international responsibility for grave violations that resulted in a serious breach of obligation to the international community as a whole. The provisions must include specific references to international norms regarding the penal laws on individual responsibility as were found, for example, in the Statutes of the International Criminal Court and the Tribunals and others.

He believed the best way of correcting indeterminate terms in the articles was to include mechanisms for the settlement of disputes. Stating that there was obvious interest on the part of States in such a system, he expressed regret that the Commission had omitted a section on it.

Turning to countermeasures, he said the proposals generally deserved support, as they strove to strike a balance between the rights and interests of the injured State and those of the wrongdoing States. A system for settlement of disputes was especially necessary to assure that there was no abuse of countermeasures.

UMBERTO LEANZA (Italy) said his government appreciated the wordings of articles 28,29,and 30 respectively on the judicial consequences of the illicit acts of a State, and to the obligation to cease such behaviour. Regarding assurances of guarantees and non-repetition of illicit conduct, he said they appeared to be indispensable in many hypothetical cases, as well as in the case of illicit acts that included the use of force.

He then turned to articles 31,32,33 and 34 -– relating to reparation, irrelevance of internal law, other consequences of an internationally wrongful act, and scope of international obligations respectively. He said it was important not only to establish obligation of the responsible State to provide reparation, but also to define the notion of damage and to underline the causal link between illicit conduct and damage. The proposed article 34 was important, as it expanded provisions specifying that the text was applicable not only to a notion of responsibility of one or several States but also the notion of responsibility towards the international community as a whole.

He said Italy supported the inclusion in the text of particularly grave illicit acts defined as international crimes alongside ordinary illicit acts known as delicts. Customary international law already dealt with the violation of specific obligations that protected fundamental interests of the international community. Those violations directly injured the rights of States, and there was authorization for attention to be drawn to the State committing the wrongful act. The obligations were known as erga omnes, he said.

He said his Government endorsed the wording of articles 35 to 40 which covered, respectively, forms of reparation, restitution, compensation, satisfaction, interest and contribution to the damage, respectively. Article 38 gave rise to some confusion, though.

The representative of Italy went on to give a detailed reading of draft articles concerning the consequences of serious breaches of obligations to the international community as a whole, and also those of the second part of part II, which, he said, had been logically formulated in terms of the right of the injured State to invoke responsibility.

He said provisions of article 43 concerning an injured State must be considered obligatory, as well as “model” in dealing with the mode of reparation. Italy fully shared the choice of the International Law Commission not to set strict criteria concerning article 44 provisions on invocation of responsibility by an injured State. Provisions on countermeasures contained considerable restrictions to avoid abuse. Articles 47 and 48 -– invocation of responsibility by several States and invocation of responsibility against several States, respectively -– were acceptable to his Government.

He said the provisions of article 51, particularly those which eliminated the distinction between obligations that could not be subject to countermeasures, as well as inclusion of obligations in international humanitarian law, seemed acceptable to his Government. The same conclusion could be reached with regard to article 52, regarding proportionality of the countermeasures.

LAMIA MEKHEMAR (Egypt), referring to the amount of work required in a second reading, said the Commission and the Sixth Committee should question whether, after having invested more than 40 years, the International Law Commission should continue to follow the emerging trends on State responsibility or rush into the adoption of a set of rules which may not seem fit after a few years. She said her country agreed with the Special Rapporteur’s view that the provisions of part II of the draft text on State responsibility were without prejudice to any rights arising from the commission of internationally wrongful acts by a State, which accrued to any person other than the State.

On the question whether a distinction should be drawn between a State or a number of other States specifically injured by an internationally wrongful act, and other States that had a legal interest in the performance of the relevant obligations, she said it should be clear that an “injured” party was the one to whom an international obligation was due.

The International Law Commission should study the distinction between a “right” to an obligation and interest in the “performance” of one. She believed that they were two different notions, drawing different consequences. That had its direct bearing on two related issues: the invocation of the responsibility of the State, and the right to remedies or countermeasures, whereby certain States might request rights to which they were not entitled under the present international legal system. Obligations owed erga omnes needed further consideration. She said the articles on the limits and conditions of countermeasures provided a very purposeful and useful set of rules designed to control resort to otherwise prohibited acts. They had to be looked into carefully, she said. The issue of termination of countermeasures might be redrafted to take into consideration the nature of some forms of countermeasures. The injured State should not be expected to fulfil an obligation that it had lawfully chosen to terminate and not simply to suspend.

It was important, she continued that the parallelism between two major branches of international law, namely the Law of Treaties and the Law of International Responsibility, were respected. The draft should not be made to blur the distinction between them with respect to breach of contractual obligations. At the same time, a “non-prejudice” provision or a constant cross- reference emphasizing the complementarity of the Convention and the draft articles had to be maintained.

Egypt agreed with those who had rejected the idea of the adoption of the draft articles in the form of a binding agreement. The negotiation process leading to the conclusion of such an agreement would cause great harm to an already weakened text. She was open to considering all other alternatives.

MOHAMMED ABDULAZIZ (Iraq) said his delegation had hoped to be able to comment in detail on the draft articles, but as a result of the embargo and the consequent delay in communication, Iraq had been prevented from doing so. However, his Government would be submitting written comments reflecting its view later on. He said he wished to focus on two important questions raised in the draft articles -- the matter of countermeasures and the issue of compensation. He viewed with concern the content of the legal provisions on countermeasures. He feared that the major powers manipulated those measures to serve their own interests. Provisions must include guarantees, especially regarding the need to take into account the effects of countermeasures on the State. Countermeasures should be taken only on an exceptional basis, and they should always be fully proportionate to the wrongful act. Countermeasures must be terminated the moment the wrongful act ceased.

Concerning article 51, he said he supported subparagraphs (a), (c), (d) and (e). He also supported article 52 and, in general, article 53, since it reflected the established rules of international law which were based on the concept that countermeasures should not be used as reprisals or as a means of interference in the internal affairs of States.

He said article 37 was in need of further clarification, specifically the means to determine compensation based on internationally recognized legal norms, bilateral agreements and arbitration. He had reservations about article 30 on interest. Paragraph 3 of article 38 was appropriate, since it indicated that satisfaction must be commensurate with actual losses. Compensation must not exceed the abilities of the State responsible. Compensation must also take into account the needs of the people and the country’s development needs.

He said efforts at codification reflected the true need of the international community to form clear legal norms that would prevent adoption of mechanisms based on the concept of force and not the rule of law. Iraq supported the adoption of the draft articles in the form of a convention. However, if that were not possible at this time, a declaration of principles by the Assembly could serve as a step toward preparing a comprehensive and binding statement.

CATE STEAINS (Australia) said her delegation had, in the past, raised concern about the inclusion of international crimes in the draft articles. She therefore agreed with the approach, whereby the criteria for such acts applied to all without reference to any distinction between “delictual” and “criminal” responsibility. She supported the new articles 41 and 42 on serious breaches but said the type and nature of “fundamental interests” was unclear. Also, paragraph 2 (a) of article 42 could be problematic, as it contained no references to timeframes.

The approach in the new article 39 concerning the inclusion of interest was compatible with the tradition of various legal systems as well as the practice of international tribunals. She supported the new paragraph on compensation for financially assessable damage including loss of profits, but noted that the provision would not apply to pure environmental damage.

On the definition of an injured State, she accepted the reformulation in articles 43 and 49 but suggested that the clarifications of the terms “collective interest” and in the “interest of beneficiaries” would be necessary to dispel uncertainty over the parameters of the article and the application of article 54 concerning countermeasures.

It would be useful, she said, to make an express reference in article 10 on the conduct of an insurrectional or other movement, to the extent of proximity or even the particular timeframe required for the conduct of an insurrectional movement, which became the new government of a State, to be considered an act of that State.

ALLIEU I. KANU (Sierra Leone) welcomed the decision of the Special Rapporteur not to draw a distinction between criminal and delictual breaches of international obligations. However, concentrating on obligations of States and on the consequences that their serious breach would entail did not emasculate the controversy that existed before.

He said Sierra Leone, like many other delegations, had serious concerns on the issues of “serious breaches” and of “countermeasures”. It strongly believed, he said, that the notion of “international crime” and ” serious breaches” were not too dissimilar. He suggested the use of the language of article 53 of the Vienna Convention on the Law of Treaties.

On the question of international responsibility of a State, his delegation agreed with the Special Rapporteur that the issue was a sensitive one, touching on the relationship between domestic and international law. In a situation where the violation of international law originated from the application of a domestic law, he said assurances and guarantees of non-repetition could, in fact, constitute a means of obliging States to repeal or amend the law in question.

His delegation had concerns about the language of article 31 on reparation. Full reparation was only feasible in the case of clearly quantifiable damages and, in most cases, damages resulting from an internationally wrongful act could not be quantified, he said. The rule was inadequate and should be revisited.

He suggested there should be appropriate wording for article 42 on consequences of serious breaches of obligations to the international community as a whole. He expressed concern that that notion was too broad, and there was a possibility of individuals and non-governmental organizations being considered part of the international community.

He said article 43, concerning invocation of State responsibility by another, raised fundamental issues. The notion was obscure and required some kind of generic language, he said. His delegation agreed with the need to regulate application of countermeasures to exclude the possibility of their being used as a political weapon by powerful States against poor and weak countries, mainly developing States. Countermeasures had to be necessary to ensure compliance with secondary obligations of cessation and reparation. He cautioned against countermeasures being used as a form of retaliation, punishment or sanction; that would go beyond the scope of the draft text and would be unacceptable to his delegation.

GYORGY SZENASI (Hungary) said his government was flexible as to the form the draft articles took. It could support a code of State responsibility, which would be similar to a convention in its content but would take the form of an Assembly declaration. A set of rules would represent a major breakthrough in the codification and progressive development of international law, even if the text were not to have the force of a legally binding instrument. However, he was convinced that eventually that important goal would be achieved.

He supported the new wording in article 31 as an important step forward in providing for full reparation. He also supported the reference in article 33 to the application of rules of international law on State responsibility, other than the draft articles. It represented not only an important addition to provide adequate protection against internationally wrongful acts but was also a basic delimitation that should be preserved. Concerning compensation, he expressed concern about the possible inclusion of punitive damages. As to provisions on contributory negligence, he said the question could be decided only on a case-by-case basis.

He was convinced that chapter III on serious breaches should be retained, although it should be further refined to arrive at a satisfactory conclusion. A clear definition of the breaches involved, a restrictive definition of the injured State, specific rules on how responsibility could be invoked, strong safeguards against the unlawful use of countermeasures and the clear enumeration of the limits of countermeasures would enable the international community to find consensus.

JAN VARSO (Slovakia) said the object of the draft articles on State responsibility was to fight against breaches of international obligation. There should be a review of all draft articles from the material and procedural point of view, he said. There should not be many material norms, as far as the scope of the regulation was concerned. The objective of those norms could assure, as a minimum, that a wrongful act would cease and the damage caused by that act would be repaired. Provisions of draft articles relating to cessation and guarantee of non-repetition, restitution, compensation and satisfaction could be a good basis for the formulation of material norms, he said.

His delegation would prefer general, simple and clear formulation of the draft articles. The procedural regulation had to contain the sensitive bloc of norms related to the invocation of a State responsibility regime to assure application of the material norms. The content of the norms had also to reflect the fact that responsible and injured States were not in the same position. The objective was to induce a responsible State to fulfil its international obligations.

The use of countermeasures could be abused by powerful countries. The instrument represented a necessary element within a regime of responsibility, as it could serve as a counterbalance vis-à-vis the country acting unlawfully. Nevertheless, the content of the provisions on countermeasures must be elaborated very carefully.

His delegation would prefer a classical convention for the format of the draft articles on State responsibility.

LJERKA ALAJBEG (Croatia) supported the proposed revisions to chapter I, part II, especially the inclusion of cessation and non-repetition and the obligation to provide reparation, which was one of the general principles governing the international responsibility of States. Although its quantification required a series of relevant circumstances being taken into account, in principle, the concept of “full reparation” expressed the only just way of remedying the damage caused.

She supported the proposal to delete paragraph 4 of the previous article 42, due to the general provision on the irrelevancy of the internal law contained in the present article 3, part I. Since the irrelevancy of the internal law was a general principle applicable to the whole text, it was appropriate to place it in chapter I of part I on general principles.

She said the provisions on countermeasures were highly controversial, even risky, and were likely to seriously restrict the application of the articles in practice. She welcomed the concept that countermeasures should be used to induce compliance with obligations of cessation and reparation. However, a fundamental precondition for taking countermeasures should be the absolute certainty that an internationally wrongful act had indeed occurred. She added that if the adoption of the draft articles in the form of a convention should prevail, the chapter on the settlement of disputes should be an integral part of any such convention.

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