SYSTEM OF COUNTERMEASURES AS ENVISAGED BY LAW COMMISSION UNLIKELY TO PROMOTE REPARATIONS, SIXTH COMMITTEE TOLD

7 November 1996

Press Release
GA/L/3017

SYSTEM OF COUNTERMEASURES AS ENVISAGED BY LAW COMMISSION UNLIKELY TO PROMOTE REPARATIONS, SIXTH COMMITTEE TOLD

19961107 Committee Considers Commission's Draft Articles On State Sovereignty, Draft Code of Crimes against Peace

The system of countermeasures envisaged in the International Law Commission's draft articles on State responsibility was not likely to promote reparations for internationally wrongful acts, the representative of Brazil said this morning, as the Sixth Committee (Legal) continued its consideration of the Commission's annual report. An international machinery should be developed that would preclude the need for such measures, he said.

According to the Commission's draft, an injured State may take defined countermeasures after first seeking to settle a dispute amicably through negotiations. Such measures shall exclude the threat or use of force, extreme economic or political coercion, or conduct infringing on diplomatic inviolability, human rights, or peremptory norms of international law.

The draft also provides for the injured State to fulfil specific dispute-settlement obligations and to suspend its countermeasures upon cessation of the internationally wrongful act. It would impose an obligation on all States not to recognize as lawful any situation created by the international crime committed by a State, nor to assist the State which committed the crime in maintaining the situation so created.

The representative of Brazil expressed satisfaction with the list of prohibited countermeasures. It was his view that an injured State should not be able to take countermeasures prior to a decision by an arbitral tribunal recognizing the validity of its claims. However, it would be free to take interim measures of protection immediately upon the occurrence of what it considered to be a wrongful act, he said.

Countermeasures were not always a satisfactory remedy in relations between States of unequal size and resources, the representative of South Africa said on behalf of the Southern African Development Community. The

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representative of Germany said the use of "interim measures of protection" could also be troublesome if they were taken prior to negotiation and arbitration. Nevertheless, the idea of such measures could provide an incentive for States to accept compulsory arbitration.

Statements on State responsibility were also made by the representatives of Austria, the United Kingdom, Bahrain and the Observer for Switzerland. The representative of Algeria, as Chairman of the Commission, introduced its annual report.

Also this morning, the Committee continued its consideration of the Commission's draft code of crimes against the peace and security of mankind, hearing statements by the representatives of Ghana, the Russian Federation, Trinidad and Tobago, Bulgaria, Cuba and Australia.

The Sixth Committee will meet again at 3 p.m. today to continue its consideration of the Commission's report.

Committee Work Programme

The Sixth Committee (Legal) met this morning to continue its consideration of the report of the International Law Commission on the work of its forty-eighth session which contains a 20-article draft code of crimes against the peace and security of mankind (document A/51/10 and Corr.1). (For background information, see Press Release GA/L/3014 of 4 November.)

The Committee also has before it a note by the Secretary-General on the report of the International Law Commission (document A/51/332 and Corr.1). It contains the draft code of crimes, which is being transmitted so the Assembly can decide on the form it should take, and draft articles on State responsibility, which are submitted for comment by States.

Another report of the Secretary-General (document A/51/358 and Add.1) contains suggestions received from Japan and the United States on the work of the International Law Commission, among them that the Commission include on its agenda an item on diplomatic protection and that it initiate a feasibility study on the law of the environment. A final report of the Secretary-General (document A/51/365) contains a reply from Japan on the present state of the codification process within the United Nations system.

Draft Code of Crimes

EMMANUEL AKWEI ADDO (Ghana) said recent regional conflicts and human rights violations had elicited only ad hoc responses from the international community, citing the link between the draft code and the statute of the proposed international criminal court, he said. The code provided the basis for a permanent mechanism to address those violations. The reduction from 12 core crimes to five had given the draft code a simplicity that would encourage universal acceptance. In the absence of such acceptance, the code would be stillborn.

The final form of the draft code should await the outcome of work on the international criminal court, he said. This code should also reflect the reality that crimes against the environment occurred in peacetime as well as during times of war.

ROMAN A. KOLODKIN (Russian Federation) said it was premature to decide the form in which the draft code should be adopted. It seemed necessary to wait for the outcome of work on the statue of the international criminal court. Only then should a decision be taken on the code itself, if that turned out to be necessary.

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It was hard to accept the proposal to incorporate the draft code within the statute of the court, he said. There was no need either for the coexistence of two universal, international legal instruments with the same terms of reference. Neither was it necessary to ensure the compatibility of the results of work done by independent experts for the draft code with the outcome of negotiations by States on the statute of the court. The draft code might be used as a back-up source for the work of the Preparatory Committee on the Establishment of an International Criminal Court.

GAILE RAMOUTAR (Trinidad and Tobago) said that including illicit traffic in narcotic drugs as a crime in the draft code would underline the seriousness of that offence and indicate the international community's willingness to rid the world of that scourge. Drug trafficking was transboundary in nature. It was carried out on a large scale, posing a threat to the economic, political and social fabric of States, especially small, developing countries.

She said a nexus must be maintained between the draft code and the international criminal court. Both instruments covered similar ground and sought to address common issues of concern to the international community.

BRANIMIR ZAIMOV (Bulgaria) said offences involving severe damage to the environment should be separated from war crimes in the draft code. To avoid duplication, the draft code should be integrated within the statute of the international criminal court. The draft code should take the form of an international convention.

SORAYA ALVAREZ (Cuba) said the drastic reduction in the list of core crimes for the draft code ignored grave dangers to the peace and security of mankind. Such crimes as colonial domination, international terrorism and damage to the environment, needed to be included in the draft code.

She said that inclusion of the crimes against the United Nations and associated personnel needed to be subjected to the same scrutiny as the original 12 core crimes. Although Cuba condemned any attacks against United Nations and associated personnel, the definition of that crime suffered from a lack of precision. Additional time was needed for a substantive review of the draft code.

CATE STEAINS (Australia) said the Preparatory Committee for the court remained responsible for dealing with the issues relating to its establishment, including all matters addressed in the draft code. "The negotiations on the establishment of a court should be allowed to run their course without being diverted by a debate on what should be done in relation to the draft code", she said. The outcome of those negotiations would ultimately provide the answer to that question. The Assembly should take no action on the code for now.

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State Responsibility

AHMED MAHIOU (Algeria), Chairman of the International Law Commission, introduced the section of that body's report concerning State responsibility (chapter III). He said the first part of that chapter contained articles on a wide range of issues relating to the origins of international responsibility. The second part dealt with the content, forms and degrees of international responsibility, while the third part addressed the settlement of disputes. In addition, the two annexes to the section of dispute-settlement contained provisions relating to the conciliation commission and the arbitral tribunal it envisaged. Issues addressed in the chapter included the taking of countermeasures by an injured State.

He drew attention to a note that had been added to article 40 concerning the use of the term "crime". The Commission had noted that alternative phrases, such as an international wrongful act of a serious nature or an exceptionally serious wrongful act, could be substituted for the term a "crime". That would avoid the penal implications of the term. The Commission also concluded that all of the articles contained in the second part of chapter III should apply without exception or modification to international crimes.

GERHARD HAFNER (Austria) said the issue of State responsibility went to the heart of international law, since the legal force of international rules depended on the consequences that would result from their breach. A balance must be struck between the idealistic view that any dispute among States must be resolved by a dispute mechanism and the realistic difficulties involved in using such a mechanism. The Commission's solution was the introduction of interim measures of protection, but it had not defined them.

IAN BROWNLIE (United Kingdom) said the concept of "State crime" lacked an adequate juridical basis and should not be retained in the draft code, having failed to gain broad international acceptance. It was one thing to punish members of a government on the basis of individual criminal responsibility and quite another to punish a collectivity like a State. Punitive measures would raise major political, social and moral problems.

The Commission's view that prior negotiations were required to ensure the lawfulness of countermeasures tilted the balance in the favour of the wrongdoer and was impractical, he said. It would be better to recognize the legitimacy of countermeasures as a last resort, subject to a criterion of necessity.

HUSSEIN MOHAMMED AL-BAHARNA (Bahrain) said draft article 39 provided that "the legal consequences of an internationally wrongful act of a State set out in the provisions of this Part are subject, as appropriate, to the provisions and procedures of the Charter of the United Nations relating to the

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maintenance of international peace and security". That meant that once the draft articles were adopted in a form of a Convention, its relationship with the United Nations Charter would be governed by Article 103 of the Charter. As a result, the provisions of the Charter would prevail over the Convention.

[Note: Article 103 of the United Nations Charter reads as follows: "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."]

The effect of article 39 could be minimized by making certain drafting changes, he said. If that was not possible, it should be deleted entirely from the draft articles on State responsibility.

He drew attention to the article which prohibited an injured State from resorting to countermeasures, saying it adequately balanced the interests of the States which had committed the wrongful act with those of the injured State. Bahrain also supported the mechanism provided for compulsory dispute- settlement.

ALBERTUS JACOBUS HOFFMANN (South Africa), spoke on behalf of the Southern African Development Community (SADC), which comprised Angola, Botswana, Lesotho, Malawi, Mauritius, Mozambique, Namibia, South Africa, Swaziland, the United Republic of Tanzania, Zambia and Zimbabwe.

He said countermeasures were not always a satisfactory remedy in the relations between States of unequal size and resources. Such a view often led to the maxim that "might is right". The placement of conditions and limits on countermeasures in the draft articles was useful, as was the possibility of codifying international norms on countermeasures.

The members of the SADC were encouraged by the Commission's work on dispute-settlement procedures, he said. The distinction made in the draft articles between international delicts and international crime must be retained.

BRUNO SIMMA (Germany) said the draft articles on international crimes lacked safeguards and could give rise to many troubling and counter-productive consequences. It was preferable to put the genie of international crimes back into the bottle from which it was released 20 years ago.

The use of "interim measures of protection" could be troublesome if they were taken prior to negotiation and arbitration. An injured State might resort to what it considered "interim measures", which the target State might

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view as full-blown countermeasures. However, the idea of interim measures, could serve to provide an incentive for States to accept compulsory arbitration.

"Let us not reinvent the wheel", he told the Committee, stressing that dispute settlement should be expressly designated to a residual, subsidiary role. The Commission should present its final product as a declaration or an expository code, and not as a draft convention.

CARLOS CALERO RODRIGUES (Brazil) said the system of countermeasures proposed in the draft articles would only benefit strong States. It would be illusory for a weaker State to expect that the countermeasures it might take would lead a stronger State to make reparations. Even if the strength of the two States was equal, it was doubtful that countermeasures would facilitate reparations. In all likelihood, they would only create tensions between the States involved. An international machinery should be developed that would preclude the need for countermeasures.

Summarizing Brazil's position with respect to countermeasures, he expressed satisfaction with the indication of prohibited countermeasures in article 50 of the draft. If the State accused of having committed a wrongful act contested the accusation, the parties should enter into negotiations. Either party might at any moment submit the dispute to an arbitral tribunal. The State which considered itself an injured State might not take countermeasures prior to a decision by the arbitral tribunal recognizing the validity of its claims. However, it would be free to take interim measures of protection immediately upon the occurrence of what it considered to be a wrongful act. Finally, the arbitral tribunal would be empowered to decide the merits of the case and whether the interim measures that might have been taken were well-founded.

LUCIUS CAFLISCH, Observer for Switzerland, said that the distinction between delicts and crimes would create more problems than it solved, making it possible to subject an entire country to penalties for the deeds of a few individuals. The draft articles on countermeasures were balanced. However, the prohibition of extreme measures should not be limited to those of an economic and political nature, excluding those which affected the environment. The Commission should consider the deletion of the words "economic and political".

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