LEGAL COMMITTEE CONTINUES DISCUSSION OF STATE RESPONSIBILITY, LIABILITY

19 October 1995

Press Release
GA/L/2869

LEGAL COMMITTEE CONTINUES DISCUSSION OF STATE RESPONSIBILITY, LIABILITY

19951019 Eleven Speakers Address Issues of Transboundary Injury Caused by Legal Acts, Definition of International Crimes, Dispute Settlement

Responsibility for the injurious consequences of legal actions that caused transboundary harm to neighbouring States should fall to the States in which the activity took place, the representative of Ireland told the Sixth Committee this morning.

Addressing the Committee as it continued its discussion of chapters of the International Law Commission report concerning State responsibility and liability for injuries caused by acts not prohibited by international law, Ireland's representative added that international bystanders should bear neither responsibility nor financial loss.

Spain said that the General Assembly, the Security Council and the International Court of Justice should all be used to make political and jurisdictional determinations regarding international crimes and their consequences. Indonesia's representative said that the Assembly and Council were political bodies and under the Charter those bodies did not have jurisdiction over crimes. The representative of Japan said that in determining the crimes of States, full consideration should be given to the regime set out in the Charter.

Regarding dispute settlement mechanisms, the representative of Germany said that negotiations should have precedence over countermeasures. The representative of Guatemala said that when applying countermeasures, victim States should observe the principle of proportionality and the rules of international law.

Also speaking this morning were the representatives of New Zealand, Italy, Pakistan, Zaire and the Observer of Switzerland.

The Sixth Committee will meet again at 10 a.m. Friday, 20 October, to continue its discussion of 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 (document A/50/10). Today the Committee was expected to continue debate on the topics of State responsibility and of international liability for injurious consequences arising out of acts not prohibited by international law (chapters IV and V of the report, respectively).

Regarding State responsibility, the report states that the notion of a "State crime" remained controversial, and distinction between the notions of "crimes" and "delicts" was discussed. The Commission also addressed the question of the role of the General Assembly, the Security Council and the International Court of Justice under the proposed scheme of implementation of legal consequences deriving from crimes. Proposals suggested for inclusion in the third part of the draft contained various methods of settlement of disputes, including negotiation, good offices and mediation, conciliation and arbitration. Models for a conciliation commission and an arbitral tribunal have also been prepared.

The report further states that the Commission made progress on certain aspects of the question of international liability and adopted articles dealing with freedom of action and its limits, prevention and cooperation. The draft articles under discussion also dealt with prevention and the notion of damage caused to the environment, as well as with remedial measures and the freedom of action by States. 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

CHRISTOPH MULLER (Germany) said that any codification of the rules on State responsibility would have to strike a balance between the ideal of having all disputes settled by orderly and cooperative procedures and the necessity of defining the preconditions and modalities of legitimate self- help.

He went on to express concern that some draft articles under discussion would create procedures superseding and even contradicting basic provisions of the United Nations Charter. The problem did not lie primarily in the draft provisions suggested by the Special Rapporteur, but in the concept of "international crimes". That concept was often illustrated by acts of aggression and genocide, which would clearly engage the responsibility of competent organs of the United Nations under the Charter. The endeavour of codifying the rules of State responsibility was intended to fill in a lacuna

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of public international law, and not to amend indirectly the Charter of the United Nations.

As the times had changed, universally condemned acts covered by the concept of international crimes could finally be expected to find their adequate legal response. However, such response may not be found in the context of State responsibility, but rather in the prosecution of individual criminals by a permanent international criminal court and in proper action of the United Nations under the rules of the Charter. The concept of international crimes had not stood the test of being translated into a workable set of rules for implementation.

Speaking about dispute settlement, he said it should be addressed in more detail, probably stipulating a rule that a serious effort of negotiations should have precedence over counter-measures. The general mechanism for dispute settlement should assume a clearly subsidiary role, given the multitude of global, regional, multilateral and bilateral mechanisms for conciliation and arbitration already in place. Existing mechanisms should be used first.

JOSE ANTONIO PASTOR RIDRUEJO (Spain) said the work on State responsibility was proceeding more slowly than expected, which could be explained by the complexity of the matter. Its discussion in the Commission this year had caused a disagreement on the issue of State crime. The distinction between the notions of crime and delict had no basis in the international legal practice. In his view, the sociology of international relationships proved the necessity of taking into consideration the seriousness and gravity of an offence.

The seriousness of a crime gave rise to a question of who should determine the act of a crime, he continued. The determination should have two phases, including the political assessment and the jurisdictional one. Afterwards, the legal consequences of a crime should be determined. Already existing international institutions should take part in such a determination, but there was doubt whether such a process would be accepted without amendments to the United Nations Charter.

On the issue of international liability, he said that the system of dispute settlement seemed appropriate. Provisionally adopted articles set out main principles on the matter. On the scope of application of those articles, he said that harm caused in areas outside the boundaries of countries should also be included.

FELICITY WONG (New Zealand) said the need to revitalize the United Nations extended also to the bodies entrusted with law-making. It was appropriate for the Sixth Committee to be discussing State responsibility and

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international liability at the same time, for the two topics had some similarities.

She had hoped the International Law Commission would be able to address the liability topic on an incremental basis, but the Commission's work had not resolved the remaining issues. She welcomed the useful work done on the issue of notification and prevention, and said that the obligation to conduct a prior assessment of a crime was already reflected in existing international law. Also, the mandatory obligation for environmental impact assessments when conducting marine projects was supported by a considerable body of international law. Harm to that environment could entail legal responsibility and had been given binding form in some conventions.

Notification and prevention, however, were not an end in themselves, she continued. The issue of a State persisting in a harmful activity should not be dealt with by, on the one hand, attempting to include the notion of an environmental crime in the draft on State responsibility and, on the other hand, including liability with the topic of prior notification.

The work of the International Law Commission on crime prevention should not be lost, she said. If the existing approach to international liability was not sufficient, the Commission should focus its efforts on further developing the topic. It was unacceptable for States to proceed with potentially harmful activities without assuring other States that no detrimental consequences would ensue. In case of violations, responsibility should be determined. A new feasibility study should be carried out at the Commission's forty-eighth session, aimed at beginning work on a topic concerning environmental law.

FRANCISCO VILLAGRAN KRAMER (Guatemala), addressing the issue of State responsibility, said that discussions on dispute settlement and on countermeasures should be carefully coordinated. The International Law Commission must define wrongful acts considered as "delicts" against offended parties and those international "crimes" which offended the whole of the international community.

Aggression was clearly an international crime, he continued. Apart from the reparations that aggressors must make to victims, various measures of the United Nations Charter could also be applied. In such international crimes as aggression, a whole spectrum of States were injured. International delicts only gave rise to countermeasures from individual injured States. Countermeasures by victim States must aim to halt the damaging action, repair the harm caused, and return to the status quo. Proportionality and the rules

of international law were critical in determining appropriate countermeasures.

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The international community as a whole also had a responsibility to apply countermeasures and sanctions.

MAURICE BIGGAR (Ireland) said that the work of the Commission in the area of international liability had "lost some of its direction". International liability had become the poor relation of international law, relegated to the role of best supporting actor. In a situation whereby an individual or company in one country was carrying out a normal, but potentially dangerous, activity and in which an innocent bystander in a neighbouring State was accidentally injured, that bystander should not be made to bear responsibility nor financial loss. There was no mention of that concept anywhere in the entire report of the International Law Commission.

If that damage occurred as the result of an accident, the operator should not be held responsible in any sense that would imply culpability, he continued. For practical and empirical reasons, the State in which the operator was situated was the legal person best placed to take responsibility for the damage and loss. Furthermore, the time had come for the International Law Commission to cease attempting to define obsolescent lists of dangerous substances or attempt to define the "environment". The Commission's consideration of international liability had not been intended to deal primarily with the environment. The task of building a code concerning protection of the environment should be addressed elsewhere.

UMBERTO LEANZA (Italy) said that in drawing a distinction between international delicts and crimes, the Commission had made clear that violations of certain profound obligations were internationally wrongful acts entitled to their own legal regime. It had been said that States could not be criminally responsible. In other hands, such responsibility could only fall to natural or legal persons. The system of the community of States had its own special features that could not be equated with similar distinctions applied in national law. The responsibility of States under international law could not be equated to the criminal responsibility of individuals under domestic law.

The consequences flowing from internationally wrongful acts were complex, he said. It was the duty of the International Law Commission to develop essential guidelines. The distinction made among international delicts was only valid if there were different consequences for each action, commensurate with its seriousness. Countermeasures should always be proportional to the effects of wrongful acts. At the same time, the Commission should give emphasis to the adoption of an article providing for dispute settlement, so that countermeasures would be unnecessary.

He said that the concept of international liability often turned on the

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normal actions of industrial society that had a high degree of risk. A number of States had adopted bilateral agreements on such liability. The Commission had emphasized the harmful transboundary effects of legal acts on the environment. States had a duty, in exercising their rights, to do no harm to other States.

CHUSEI YAMADA (Japan) said consideration of State responsibility in the Commission was overdue and he hoped that the Commission would complete the first reading of the draft articles at its next session. Articles on the conditions for countermeasures and countermeasures by injured States still remained to be formulated. The piecemeal submission of draft articles to the General Assembly would not be conducive to meaningful discussion on the subject in the Sixth Committee .

If the crimes of States were to be tackled, full consideration would have to be given to the Charter of the United Nations, he continued. Also, a systematic mechanism would have to be established for determining when an international crime had been committed, for enforcing criminal responsibility of the offending State and for providing for the settlement of disputes. Also, the question of what kind of legal consequence or punishment was to be applied posed many difficult issues, because of sovereignty, territorial integrity and political independence.

Until now, countermeasures had been a major point of contention under international law, he continued. There was the possibility that a victim State would not only make arbitrary decisions on the existence of wrongful acts by other States, but would also decide upon the degree of its response in an arbitrary manner. The stipulation of articles on the principle of proportionality and on prohibited countermeasures were an attempt to provide legal constraints and diminish the risk of such arbitrary decisions.

The latest draft built a system by which parties in a dispute could seek settlement through negotiation, good offices, mediation, conciliation and arbitration, he said. They could also make use of the International Court of Justice to confirm the validity of an arbitration tribunal's decision. However, States that opposed giving preference to any specific method of settlement of disputes could be expected to criticize proposals for obligatory conciliation as a violation of the freedom of choice.

DIDIER PFIRTER, Observer for Switzerland, addressed the issues of countermeasures and settlement of disputes. He said the principle of proportionality formulated by the Commission stipulated that countermeasures should not be out of proportion to the violation of international law. The cumulative criteria of harm done to the injured State and the seriousness of the wrongful act should also be taken into consideration. Prohibited countermeasures encompassed all forms of behaviours prohibited under

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international law, including extreme political or economic acts against States that had committed wrongful acts.

The draft articles on settlement mechanisms provided for arbitration procedures and for conciliation and negotiation, he said. Quick dispute resolution could prevent the harmful consequences of countermeasures by States. However, compulsory arbitration procedures for a number of disputes were hard to reconcile with other provisions provided for by the Commission. It was also hard to understand why only certain kinds of disputes should be covered by such compulsory procedures, rather than all disputes.

The article providing for the obligation to negotiate did not need further comment, he continued. The procedure of conciliation would not necessarily result in the resolution of a dispute. It was necessary, but not sufficient. It needed to be supplemented by specific mechanisms that would yield compulsory results. The three-month time period for negotiations was also insufficient.

ZIA AHMAD JALBANI (Pakistan) said that, while attempting to define crimes against the peace and security of mankind, it would be both desirable and advisable to concentrate on legally definable crimes. Prudence demanded that controversial areas should be avoided. While he tended to support the inclusion of six crimes in the code, the offence designated as "international terrorism" should be re-examined. Terrorism came in different forms and manifestations and international terrorism was only one of them. Perhaps the worst form of terrorism was "state terrorism", which should be included in the code's definition.

Some of the six deleted crimes deserved to be incorporated in the code, including mercenary activity, colonial domination and other forms of alien domination. Also, the members of the International Law Commission should guard against any possible abuse of the concepts they were developing. They should ensure that the concepts in no way impinged on the sovereignty of a State, since that would render the adoption of the code difficult. As for accessions and ratifications to multilateral treaties, he said that reservations had enabled States to become parties to the Conventions that they might otherwise not have been able to join, because of conflicts with their legal systems. Thus, he rejected the view that reservations should not apply to human rights treaties.

MULYA WIRANA (Indonesia) said that the draft code of crimes against the peace and security of mankind should contain precise definitions of crimes. To that end, the International Law Commission should closely coordinate its work with those elaborating the draft statute of an international criminal court. Regarding the definition of "aggression" and the determination of such acts by the Security Council, it was important to differentiate between the

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functions of the Council and a judicial body in assessing the criminal responsibility of individuals. The Security Council did not have the competence to exercise jurisdiction over the accused. Further, the determination of penalties should be left to the draft statute for an international criminal court.

Regarding the topic of State succession, he said the Commission should work towards establishing guidelines on the obligations of successor and predecessor States to resolve problems of nationality. It would also be appropriate to examine State practice and national legislation. Questions on nationality arose out of international and national law, but in most instances individuals were not subject to international law. Different categories of nationality were often established by internal law.

Regarding the issue of State responsibility, he said that the issue of "State crime" had raised controversy and doubt. The General Assembly and the Security Council were political bodies and it would be inappropriate to assign them judicial functions. Furthermore, under the Charter those bodies lacked the authority to establish jurisdiction over crimes. As for the International Court of Justice, there were problems with compulsory jurisdiction and the lack of independent fact-finding techniques. Alternative approaches should be considered, such as appointing an ad hoc prosecuting body, using arbitration or giving jurisdiction to an international criminal court.

GERARD MAPANGO (Zaire) said he found it difficult to comprehend why crimes that had been forcefully denounced in the past and included in previous international legal instruments could have been excluded from the draft code of crimes against mankind. Such an approach was inconsistent with the mandate of the International Law Commission to progressively develop and codify international law. The sensitivities of different nations should be considered when codifying such crimes as apartheid, armed intervention, colonial domination and other forms of alien domination, and so forth.

He said the "minimalists" who had suggested a limited number of crimes to be retained on the list had argued that many of the suggested crimes would never be applied in international law practice. They had also argued that a draft code with a small number of crimes would be more acceptable to a larger number of countries. However, the minimalist trend underestimated the fact that the future international criminal court would have to deal with a large number of international crimes. He supported inclusion of the largest possible number of crimes in the draft code, because their inclusion would have a deterrent effect.

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