SIXTH COMMITTEE CONTINUES CONSIDERING REPORT OF INTERNATIONAL LAW COMMISSION
Press Release
GA/L/2868
SIXTH COMMITTEE CONTINUES CONSIDERING REPORT OF INTERNATIONAL LAW COMMISSION
19951018 Discusses State Responsibility and Liability For Acts Not Prohibited by International LawThe assignment of criminal responsibility for international actions by States was difficult under customary international law, the Sixth Committee was told this morning as it continued discussing the report of the International Law Commission.
The representative of France said that he objected in principle to imputing a crime to a State. The term "State" generally covered the institutions of public power, but under international law, the term embraced peoples and territories as well as institutions. The punishment of a whole people could not be an act of justice.
The representative of China said that State responsibility was based on the often-challenged concept of "State crimes". Both the draft Statute for an international criminal court and the draft code of crimes against the peace and security of mankind were intended to be applied to individuals only. That showed that the so-called State crime did not exist in contemporary international practice.
Denmark, speaking on behalf of the Nordic countries, said that if the draft articles introduced compulsory dispute settlement, there would be no need for provisions on countermeasures. But in an imperfect world, countermeasures were a fact of life.
The representative of Iran said that the characterization of an internationally wrongful act by a State as a "crime" raised questions about follow-up legal procedures. Designating all States as injured States -- and allowing them to take countermeasures -- would be impractical.
The representative of Slovenia said that the draft articles on State responsibility, by addressing threats to international peace and security, tended to enter the traditional domain of the Security Council. They had been subjected more to political decision-making than to legal reasoning.
Regarding international liability for injurious consequences arising out of acts not prohibited by international law, Brazil's representative said that
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effective procedures to enforce international liability would be as important as the substantive rules.
Sweden, also speaking on behalf of the Nordic countries, said the Commission should elaborate a declaration or statement of principles on international liability. For State liability to assume greater significance, it should be articulated in specific rules.
The representative of Austria said the Commission should think about a reasonable work schedule, with a view of finishing work on State responsibility by 1999. The Commission might also consider alternative instruments such as the endorsement of principles with a high degree of international acceptance.
The Sixth Committee will meet again at 10 a.m. tomorrow, 19 October, to continue discussing the report of the International Law Commission.
Committee Work Programme
The Sixth Committee (Legal) met this morning to continue consideration of the report of the International Law Commission on the work of its forty-seventh session, which was held from 2 May to 21 July (document A/50/10).
Today, the Committee was expected to begin debate on the topics of State responsibility (chapter IV of the report) and of international liability for injurious consequence arising out of acts not prohibited by international law (chapter V).
On State responsibility, the report states that a series of articles was adopted for inclusion in the third part of the draft concerning settlement of disputes. Proposals suggested various methods of settlement: negotiation; good offices and mediation; conciliation and arbitration. Models for a conciliation commission and an arbitral tribunal have also been prepared. The notions of a "State crime" and "injured State" remained controversial.
On the question of international liability for injurious consequences arising out of acts not prohibited by international law, the Commission made progress on certain aspects. Those dealt, in particular, with prevention and the notion of damage caused to the environment, as well as the freedom of action by States and the limits thereto. It also adopted articles dealing with freedom of action and its limits; prevention; and cooperation. The Commission adopted another article as a working hypothesis under the title "liability and compensation".
For detailed background information on the documents before the Committee, see press release GA/L/2863 of 12 October.
Statements
FRANZ CEDE (Austria) said the Commission should think about a reasonable work schedule, with a view of finishing work on State responsibility by 1999. The Sixth Committee should not refrain from supporting the Commission by recommending a reconsideration of priorities. The issues which might be deferred to a later additional codification attempt should be set aside. The Committee might also consider alternative instruments, in particular, the possibility of endorsing those principles which already had a high degree of acceptance within the community of States. At the same time, more controversial issues could be identified with a view of finding compromise solutions.
Codifying a workable procedure to be applied prior to taking countermeasures should constitute the centre-piece of the codification endeavour, he continued. In that context, the graveness of an injury caused
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to a State and the objective criteria of the breach of international law in relation to the diligence applied by the injuring State should have priority, as an element to qualify the degree of responsibility, particularly with a view to determining the proportionality of countermeasures. The notion of crime, without obligatory international jurisdiction having authority to apply punitive measures against a delinquent State ran a high risk of being counter-productive.
Adding another set of rules on the peaceful settlement of disputes to the ones already existing bore very limited importance for the codification of the international law on State responsibility, he said. The issue of proportionality was one of the cornerstones of an international regime on State responsibility, since it was designed to provide a primary regulatory element for the establishment of a reasonable and acceptable regime on countermeasures.
His delegation considered the approach taken by the Commission to link the notion of proportionality to the regime of prohibited countermeasures as the right one. However, he had a concern regarding the proposed text, which left the determination of the human rights to a value judgement as to which human rights were "basic". That did not provide parameters for an objective determination.
HUBERT LEGAL (France), speaking on State responsibility, said that the Commission had identified three concepts -- State crimes, responsibility for the consequences of international crimes and dispute settlement. France opposed the whole concept of State crimes. Certain international acts were more serious than others, but they resided in a continuum. Dividing between delicts and crimes was a fallacious approach.
He said the draft articles had equated international crimes with crimes articulated by national laws. On the international level there were no legislators, judges or police forces. France objected in principle to imputing a crime to a State. The punishment of a whole people could not be an act of justice. The term "State" generally covered the institutions of public power, but under international law, the term embraced peoples and territories as well as institutions.
Under the Commission's definition of State crimes, the entire international community could claim to be an injured State, he continued. The Commission should precisely identify individual States which suffered specific injury. Under the Commission's conception of State crime, jeopardizing international peace and security could be considered a crime. That was tantamount to impinging on the prerogatives of the Security Council.
If individual States could directly approach the International Court of Justice with an accusation of State responsibility for aggression, he
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continued, the international community could face a situation in which the World Court determined that an act of aggression had occurred while the Security Council had not so determined.
He said France was not enthusiastic about the draft articles dealing with dispute settlement, which would provide for obligatory dispute settlement before the International Court of Justice. The dispute settlement procedures in the draft articles should be considered strictly voluntary.
The Charter provided the General Assembly with a responsibility for the progressive development of international law, he went on. The term "progressive" had meant to instruct that the development be steady and undertaken at a measured rate. The International Law Commission should not overstep its mandate and thus doom its efforts to failure.
Regarding international liability for the injurious consequences arising out of acts not prohibited by international law, he said according to the draft articles that liability could arise out of any harmful transboundary activities. State liability was only residual to the responsibility of the operator that gave rise to the transboundary harm. It was not clear that States were ready to accept responsibility for such actions. France proposed that the Commission develop a set of principles for their liability regimes.
CARLOS CALERO RODRIGUES (Brazil) said that during several sessions, the Commission had been involved in extensive debates on the instrumental consequences of the "ordinary" wrongful acts, qualified as delicts in draft articles.
Speaking about settlement of disputes, he said the seven articles provisionally adopted by the Commission, including negotiation, good offices and mediation, conciliation and arbitration, were acceptable, but they contained few innovations and did not depart from the usual pattern found in other instruments. The only real novelty in the whole draft was a special procedure to operate, before the application of some countermeasures. It was an excellent idea, but the suggested procedure seemed rather cumbersome. The Commission should give up its attempt to include now in the text the consequences of international crimes. The matter should be considered during the second reading.
Regarding international liability, he said that effective procedures to enforce liability would be as important as the substantive rules. The problems were difficult, because both private persons and entities, as well as States might be involved. Given the variety of situations which might arise, the creation of additional machinery might prove necessary in certain cases. The whole matter required a lot of study.
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HE QIZHI (China) said the core issue regarding the draft articles on State responsibility was that they had been based on the often challenged concept of the so-called "State crimes". Since the validity of the concept seemed controversial, it would be wise to defer the consideration of those articles until the second reading, when they could be considered in conjunction with the concept of State crime. That would help avoid endless debate, and would facilitate the completion of the first reading of all the draft articles on State responsibility, as scheduled.
Theoretically, it would be difficult to transplant the concept of crime in criminal law to the realm of State responsibility, he continued. It would be impossible to apply penal law among equal sovereign entities, because the international community comprised sovereign States on equal footing and there was no supra-national judicial organ over and above the States.
International practice after the Second World War had been directed to individuals, he continued. It was the individual, rather than the State, that should bear the criminal responsibility, although the State should not be immune from the responsibility of compensating the damages caused by those individuals. The draft Statute for an international criminal court and the draft code of crimes against mankind were also intended to be applicable to individuals only, which showed that the so-called "State crime" did not exist in contemporary international practice.
Another question that warranted further study was how the prevailing system under the United Nations Charter could be linked with the system of State responsibility, he continued. In case of the International Court of Justice, the compulsory jurisdiction of the Court was established on the basis of voluntary acceptance by States. However, according to the draft articles, all State parties should recognize and accept the decision of the Court on State crime, no matter, whether they accepted the jurisdiction of the Court or not.
That provision was incompatible with the principle of voluntary acceptance of jurisdiction of the Court and involved an amendment to the Statute of the Court, he went on. Also, the World Court lacked the necessary means, including procurator and investigation organ, to handle a criminal litigation and to determine the existence of a State crime.
Regarding the settlement of disputes, he said the question of whether further improvement was needed to make the draft articles acceptable to as many countries as possible, should be contingent on the reaction from the States.
LAURIDS MIKAELSEN (Denmark), speaking on behalf of the Nordic countries, endorsed draft articles relating to the settlement of disputes. If the draft introduces a compulsory dispute settlement procedure relating to State
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responsibility, there would be no need for provisions on countermeasures. But in an imperfect world, countermeasures were a fact of life that had been accepted by the Commission. Denmark endorsed the Commission's decision to limit its approach to introducing a mandatory element -- consisting of an obligation to submit disputes to an arbitral tribunal -- only with regard to disputes concerning countermeasures. By the draft articles, only the State against which countermeasures had been taken was entitled to avail itself of the mandatory system, creating an imbalance between the right of the wrongdoing State and the injured States.
He said he agreed with the distinction between international delicts and international crimes. The legal consequences of a crime committed by a State must be spelled.
MICHAEL ODEVALL (Sweden), speaking on behalf of the Nordic countries on the topic of international liability for actions not prohibited by international law, said that State practice and case law had formulated general principles on liability, which now were part of treaty and customary law. The Commission's work on a regime on international liability could be characterized as a normative response to changing circumstances in an interdependent world.
The articles elaborated by the Commission reflected general principles and served as comments on selected provisions adopted earlier, he continued. The principles imposed on States the responsibility to ensure that activities within their jurisdiction or control did not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. The basic principles of prevention and cooperation had also been set out. The article on liability and reparation was, unfortunately, still at an embryonic stage, as it was considered to be a working hypothesis and left to later elaboration.
It was the view of the Nordic countries that the Commission should elaborate a declaration or statement of principles, he continued. The report provided limited clarification of some of the central issues, including the standard of liability and the availability of remedies. Unless presented in specific rules, the concept of State liability would not assume greater significance.
He stated that it was particularly important to develop a framework to guarantee the protection of innocent victims, whatever legal subjects they might be, from the consequences of transboundary harm and to facilitate prompt and adequate compensation for damage.
MIRJAM SKRK (Slovenia) said that both the draft code of crimes against mankind and the existing draft articles on the State responsibility addressed the sphere of international law relating to threats as well actual breaches
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and preservation of world peace and security. Peace and security had been virtually the exclusive domain of the Security Council and had been subjected to political decision-making, rather than to legal reasoning.
The draft code of crimes should take the form of multilateral treaty, she continued. The draft statute of an international criminal court and the draft code of crimes should be in harmony, although they would form two different contractual units and might not necessarily have different parties. The positive side of the new definition of aggression was that it no longer depended on the pre-determination of aggression by the Security Council. The threat of aggression should also remain on the list of crimes.
Regarding crimes against humanity, she said that the statutes of the tribunals for the former Yugoslavia and Rwanda, as well as the draft statute of the international criminal court, defined crimes against humanity on the basis of the Nuremberg Tribunal. The uniformity of that practice should be observed. Her delegation had not opposed the initial wider approach to the list of crimes and supported the inclusion of international terrorism and illicit drug trafficking on the list of crimes against peace and security of mankind.
Speaking about crimes omitted by the Special Rapporteur in his present report, she supported the view that the crime of apartheid should be replaced by the crime of corresponding gravity against the principle of prohibition of all forms of racial discrimination. She also wondered whether the Commission had been too hasty in omitting the crimes of colonial domination and other forms of alien domination. Because of its potential detrimental consequences, the crime of willful and severe damage to the environment could remain on the list of crimes.
On the question of penalties, she said the Commission should specify penalties for each crime, precluding the death penalty. That would improve the creation of legal norms and strengthen the principle of legality of individual criminal responsibility under international law.
Regarding State responsibility, she said that the distinction between State crimes and delicts as part of international law had been introduced by the Commission a decade earlier. Objections to the notion of a crime on the ground of terminological were far from convincing. In many legal systems, the notion delict was a substitute for a criminal act.
Other serious legal problems that have to be addressed by the Commission included the question of an injured State, she said. All procedures available to an injured State, including the resort to interim measures and countermeasures that would involve the International Court of Justice or another impartial judicial body, deserved special attention and could be further elaborated.
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DJAMCHID MOMTAZ (Iran) said that the Commission had not invented the concept of State crime; it had merely responded to the development of international law since the First World War. The International Court of Justice had provided that there were degrees of internationally harmful acts, such as when, in 1986, it drew a distinction between actions by the United States in Nicaragua and overt acts of aggression.
The jurisdiction of the General Assembly and of the Security Council had been set out in the Charter, he said. In recent years, the Security Council had tended to interpret threats to international peace and security in a broad manner. Both bodies were subject to the vicissitudes of political circumstances.
The characterization of an internationally wrongful act by States as a crime raised questions about follow-up legal procedures, he continued. Designating all States as injured States -- and allowing them to take countermeasures -- would be impractical. A distinction should be drawn between all States and those which had suffered specific material harm. The legal concept of an injured State should be further clarified by the International Law Commission.
The draft articles on the settlement of disputes, which had been adopted by a slim majority in the Commission, disregarded the principle of free choice on the settlement of disputes established by the Charter.
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