AGGRIEVED STATES SHOULD NOT BE ALLOWED TO TAKE LAW INTO THEIR OWN HANDS, LEGAL COMMITTEE TOLD
Press Release
GA/L/2870
AGGRIEVED STATES SHOULD NOT BE ALLOWED TO TAKE LAW INTO THEIR OWN HANDS, LEGAL COMMITTEE TOLD
19951020 India Warns of Danger in Countermeasures; Debate on Law Commission's Report Continues, with Review of State ResponsibilityCountermeasures were too often used to legitimize power plays and coercion, the representative of India told the Sixth Committee (Legal), as it continued consideration of the report of the International Law Commission this morning. States should not be allowed to take the law into their own hands, he said.
During the debate on State responsibility, the questions of special and supplementary consequences, satisfaction, restitution and compensation were addressed. The question of countermeasures was also discussed.
Speaking on the subject of international liability for acts not prohibited by international law, several speakers discussed the notion of transboundary harm and the question of compensation. The representative of the Netherlands said that the general obligation to prevent or minimize the risk of causing significant transboundary harm would provide a clear foundation for all other obligations relating to prevention, in particular those of notification, exchange of information and consultation.
The representative of the Czech Republic said that the consequences of international crimes must have an imperative nature. Sri Lanka said that in consideration of the question of compensation, general principles of law recognized by nations should be contemplated. The Commission should give its views on the extent to which presently applicable judicial or arbitrary decisions could be taken.
Returning to the topic of the draft code of crimes against peace and security of mankind, several speakers agreed that in eliminating crimes from the draft code, the Commission had taken an excessively restrictive approach.
Also this morning, the Chairman of the International Law Commission, P.S. Rao introduced the chapters of the report on the topics of State succession and law, and practice relating to reservations to treaties.
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Representatives of Belarus, Syria, Tunisia, Trinidad and Tobago, Cameroon and Iraq also spoke in the debate.
The Committee resumes its work at 3 p.m. today, when it will continue consideration of the report of the International Law Commission.
Committee Work Programme
The Sixth Committee (Legal) met this morning to continue debate on the report of the International Law Commission (document A/50/10). The Committee was to continue discussion of 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). The Committee was also expected to hear an introduction of chapter III of the Report on State succession and its impact on the nationality of natural and legal persons.
With respect to State responsibility, the report states that during the forty-seventh session of the Commission, the notions of "State crime" and "injured State" remained controversial. Articles proposed for inclusion in the third part of the draft contained methods of settlement of disputes and models for a conciliation commission and an arbitral tribunal. 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.
The report also states that the Commission made progress on the question of international liability and adopted articles dealing with freedom of action, prevention and cooperation. The Commission also considered draft articles on prevention, the damage caused to the environment, remedial measures and the freedom of action by States.
For detailed background information on the documents before the Committee, see Press Release GA/L/2863 of 12 October.
Statements
SYARGEI SYARGEEU (Belarus) supported the adoption of the code of crimes against mankind and welcomed the Commission's continuation of work on the draft. The list of crimes should not be considered final. The proposal to reduce the list of crimes merited consideration. However, the reduction proposed this year seemed too radical.
He said he was particularly concerned about the possible exclusion from the draft of the article on "wilful and severe damage to the environment." His country had experienced the tragedy of the Chernobyl catastrophe, which had infringed upon the most sacred of human rights -- the right to life. His delegation wanted wilful and severe damage to the environment included in the code as a crime.
He also supported the elaboration of a general article on the scale of penalties for all crimes, specifying minimum and maximum penalties and the mitigating circumstances. Accordingly, penalty provisions should be deleted from the articles dealing with individual crimes.
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GHASSAN OBEID (Syria) said he would prefer a clear definition of crimes in the draft code. Reasons for the inclusion of a crime also needed to be provided, and specific criteria should be used for inclusion of crimes on the list. He was also in favour of a clear definition for extradition as well as for a request for extradition.
Speaking of the relationship between an international criminal court and the code of crimes, he said crimes against peace and security should be very serious in nature to be included in the list. Sentencing of criminals should be assured by a fair and impartial court. The proposed international criminal court would use the code in its work. Limiting the list of crimes would limit the competence of the court and mean that punishment would also be limited, which could lead to the failure of the system. Limiting the list would not prevent terrible crimes directed against the peace and security of mankind.
Aggression was one of the major crimes, he continued. Authority to determine an act of that crime was discretional now. The Security Council should be neutral, but the power of veto made it subjective and took away from its credibility. Thus, the determination should be done by the General Assembly, and not by the Security Council.
The crimes of genocide, war crimes and systematic and mass violations of human rights were all very important. However, other important crimes existed. Limiting the code to six crimes was not sufficient, and other crimes originally listed should be looked at more closely and objectively, for they were shocking to human conscience. The scourge against human society could not be fought, unless international solidarity was assured against them. The list should be exhaustive in nature, and not limited.
SAMIA LADGHAM (Tunisia) said the International Law Commission (ILC) had carried out outstanding work in codification of international law. However, the draft code of crimes had been on its agenda since 1947. The work of the Commission would be incomplete if it did not hand down to future generations an instrument directed against crimes against peace and security of mankind.
Continuing to set aside the draft code and to limit its scope would be counter-productive, she continued. The code and the International Criminal Court should be harmonized. The link between the court and the statute of the international criminal court had already been established, thus the code should have provisions for specific sanctions. Also, the code should be binding to the parties.
She said a crime of apartheid should appear on the code for the memory of future generations. On the crime of aggression, she said the deletion of the role of the Security Council from the definition would clarify rather than confuse the issue. A list of actions that constituted aggression would be useful.
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DELIA CHATOOR (Trinidad and Tobago), speaking on the draft code of crimes against the peace and security of mankind, said the draft should include only the most serious crimes. By adopting a minimalist approach the International Law Commission would command a wide acceptance, but her Government believed that a number of the crimes proposed for exclusion should be retained.
The international community had not come up with a definition of aggression sufficient for the purposes of international law. The required distinctive legal elements were absent, and there were serious political connotations associated with aggression and the role of the Security Council. Intervention was clearly unacceptable, but it was a difficult concept to describe with judicial exactitude.
Genocide was a serious international crime and must be included in the draft code, she went on. The language in the 1948 Genocide Convention had adequately defined the offence. The proposal to exclude the crime of apartheid should be reconsidered; to that end, the Commission should define "institutionalized racial discrimination".
Recent events had shown that the international community was not free from the activities of mercenaries. That offence should be retained in the draft code. As to international terrorism, she said that provisions on that crime could form the basis for further consideration.
PASCALINE BOUM (Cameroon) said that by completing its second reading of the draft code of crimes, the Commission had focused on four essential crimes: aggression, genocide, crimes against humanity and war crimes. She did not approve of that excessively restrictive approach. Crimes such as colonial domination and other forms of alien domination should be reflected in a final code.
The serious nature of those crimes and their consequences should guide the Commission in developing the draft code. Clearly, colonialism was a crime against the peace and security of mankind. Former colonies -- particularly in Africa -- had no intention of using the code to "settle old scores". Apartheid was an odious form of institutionalized racism. It had led to war, genocide and crimes against mankind.
The General Assembly had entrusted discussion of the draft code of crimes to the International Law Commission. She hoped that the Commission would seriously consider the will of all members of the international community in its continuing deliberations.
RYAD HASHIM AL ADHAMI (Iraq) said the International Law Commission had eliminated six of twelve crimes approved for the draft code at the first reading. Iraq regretted that reduction. Intervention was still a fact of
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international political life. The International Law Commission should work hard to develop a workable definition of aggression for the draft code.
The new draft article of crimes against humanity had removed reference to the placement of settlers in an occupied territory. The draft article still referred to the unlawful transfer of civilians from occupied territories. Would it not be possible to include the establishment of occupied territories and the mass rape of women in the draft code? he asked.
VACLAV MIKULKA (Czech Republic) said the Commission had taken considerable time to debate whether the concept of State crime should be maintained. That concept was not a recent invention. The Commission must consider all consequences of all international criminal acts, including State crime. The distinction between international crime and delicts was not justified. It was based on the assumption that there was a difference in responsibility for those acts.
At the present stage, the Commission should have considerable knowledge of the consequences to the wrongful acts, in order to make its decisions that would have long-standing influence on international law. On illicit acts menacing to the vital interests of a country, he said that "vital interests" was not a concept of law. Rather, it was political in nature and should not be considered when codifying international law.
He also addressed the questions of special and supplementary consequences, restitution and compensation, and said that whether an injured State should have a choice between the kind of restitution or compensation required further study. On the issue of satisfaction, he said one of its forms should be the initiation of criminal proceedings against the person responsible for the perpetration of a criminal act. The balance between the responsibility of State and individuals should be taken into consideration. The proportionality of countermeasures should also be addressed.
TEUNIS HALFF (Netherlands), commenting on the topic of State responsibility, said the legal consequences envisaged for international delicts should also be subject to being invoked in the case of international crimes. The draft article allowing for unilateral referral of disputes between States to arbitration, or to the International Court of Justice, appeared to be adequate, he said.
On international liability, he said the general obligation to prevent or minimize the risk of causing significant transboundary harm may be deemed an implicit consequence of the obligation not to cause significant transboundary harm. It would provide a clear foundation for all other obligations relating to prevention, in particular those of notification, exchange of information and consultation.
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The Netherlands supported the obligation of States to cooperate in good faith, and to seek the assistance of any international organization in preventing and minimizing the risk of significant transboundary harm and, if such harm occurred, in minimizing the effects in its own territory caused by the infliction of transboundary harm.
JOHN DE SARAM (Sri Lanka) said many concerns expressed in the work of the International Law Commission were due to the lack of definition by the Commission of the direction it was proposing to take. Many fundamental questions had arisen during the work of the International Law Commission's forty-seventh session, especially in the areas of State responsibility and international liability.
It was clear from the report that the decision of the Commission to refer the articles under discussion to the drafting committee was controversial. Some concepts were still questionable. The purpose of the draft articles was to compensate for breaches of international law and not to punish. The severity of a breach should be taken into consideration when determining compensation. An amendment to the Charter was needed in some of its fundamental arrangements.
The question of State crimes involved a long history of differences of view, he said. If that subject continued to burden the Commission next year, the essential requirement for the draft articles to be completed on time would not be realized. Some appropriate guidance needed to be given to the Commission by the Sixth Committee.
On countermeasures and the settlement of disputes, he said that the approach taken by the Commission appeared to be sensible. Proposals were flexible and reasonably consensual. The concept of stronger and weaker parties in a dispute called for a consideration of the possibility of involving a third party in settlement. Provisions regarding settlement in countermeasure situations were of great importance, he added. Countermeasures could in many cases be unjustifiable from the legal point of view and would require arbitration.
On the subject of liability, he said one of the most fundamental questions was the question of transboundary damage. In inter-governmental relations, a question of payment of compensation arose, in some cases requiring that governments incur financial consequences of magnanimous proportions. In consideration of the question, general principles of law recognized by nations should be considered.
S. RAMA RAO (India) said that too often, countermeasures were used to legitimize power plays and coercive measures, rather than to promote equity and justice. A careful structuring of restraints on countermeasures was essential. States should not be allowed to take the law into their own hands and thereby subject the international community to vigilantism.
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The difficulty with the concept of State crimes was that there were no ground rules for determining violations, or institutions for making objective and impartial determination of grave "wrongs" or "crimes". Allowing victim States freedom to react to "crimes" must await a world of greater political and economic integration. The topic of countermeasures needed further discussion, he said. A more precise formulation was needed, based on the practice of States, particularly developing countries, which could not absorb economic or political coercion.
The scheme of dispute settlement proposed by the Commission had essentially called for compulsory procedure. India favoured a more flexible system of settlement of disputes, as opposed to a binding third party settlement procedure. In addition to being costly, that procedure would not promote amicable settlement of disputes.
Statement by Law Commission Chairman
P.S. Rao, Chairman of the International Law Commission, then introduced chapters of the Report of the Commission dealing with State succession, law and practice relating to reservations to treaties, and other decisions and recommendations of the Commission.
The Special Rapporteur had stressed the need to clearly delineate the distinction between the nationality of natural persons and that of legal persons. In debating the issue, some Commission members favoured the elaboration of a treaty, while others favoured a list of principles. The debate revealed agreement that States were obliged to negotiate in order to resolve nationality problems. It was also agreed that in situations resulting from State succession, every person affected by the change had a right to a nationality, and that States were required to prevent statelessness.
The working group had developed three categories of succession: secession and transfer of part of a State's territory where the predecessor State continued to exist; cases of unification, including absorption, where the predecessor State ceased to exist; and cases of dissolution where the predecessor State ceased to exist but more than one successor State had emerged. The working group concluded that the will of the individual, with the development of human rights law, had become paramount.
Regarding law and practice relating to reservations to treaties, he said that the Commission needed to ensure that essential elements of treaties were preserved, and to facilitate the widest possible accession to multilateral treaties of general interest. Several members of the Commission favoured the preparation of guidelines and model clauses which would allow the elaboration later of a draft protocol or convention.
Regarding recommendations of the Commission, he said that as a priority matter, the International Law Commission would seek to complete the second
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reading of the draft code of crimes and the first reading of the draft articles on State responsibility by the end of the current term of office. It would attempt to complete a first reading of the draft articles on international liability for injurious consequences arising out of acts not prohibited by international law by 1996.
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