SIXTH COMMITTEE CONTINUES REVIEW OF DRAFT ARTICLES ON STATE SOVEREIGNTY
Press Release
GA/L/3019
SIXTH COMMITTEE CONTINUES REVIEW OF DRAFT ARTICLES ON STATE SOVEREIGNTY
19961108 Argentina Cites Need for Flexibility In Procedures for Settlement of DisputesThe Sixth Committee (Legal) this morning continued its consideration of the International Law Commission's draft articles on State sovereignty, focusing on its provisions concerning dispute settlement, countermeasures that might be taken by injured States, and the distinction between different types of offenses.
The representative of Argentina said flexibility was needed in the draft's provisions on dispute-settlement, as imposition of a binding procedure would not help improve relations between the States concerned. The representative of Cameroon said the draft's treatment of that issue was comprehensive but imposed a number of mandatory steps which were not always necessary.
A mechanism should be established for the amicable settlement of disputes caused by internationally wrongful acts, the representative of Ukraine said, while the representative of Sri Lanka cited the logistic and financial burdens that dispute-settlement procedures could entail for small countries such as his own.
Statements were also made by the representatives of Italy, China, France, Morocco, Jordan, Japan, Bulgaria, Iran, Australia and Spain.
The Sixth Committee will meet again at 3 p.m. on Monday, 11 November, 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 annual report of the International Law Commission (documents A/51/10 and Corr.1). It was again expected to focus on the Commission's draft articles on State responsibility. (For background on the report, see Press Release GA/L/3014 of 4 November.)
Statements
UMBERTO LEANZA (Italy) drew attention to the section of the draft articles dealing with countermeasures which might be taken by an injured State. He said the main problem with countermeasures was determining when they were the proper response. A State could not be allowed to use such measures to punish another State, but only with the aim of ending the offensive action or generating reparations.
Reservations had been expressed about the concept of "State crime", he said. Many feared that adopting such a concept might result in one State assuming a right to impose sanctions on another or to do whatever it felt was right. Such problems could be effectively addressed. The institutional framework of the United Nations could be employed, with the Security Council determining the political aspect of a crime and the International Court of Justice determining the legal question of whether an international crime had been committed.
HE QIZHI (China) said the part of the draft articles dealing with dispute-settlement was a repetition of the relevant content of Article 33 of the United Nations Charter and need not be repeated. Furthermore, its provisions did not include judicial settlement by the International Court of Justice, and was therefore incomplete. The compulsory arbitral procedure cited in the draft could give rise to controversy, he said. Despite its provisions, no existing international instrument or customary practice held that an arbitral award might not be implemented as a result of dissenting views raised by one party to the dispute. It was reasonable for the draft to define the rights and obligations of injured States with respect to countermeasures.
The Commission should devote greater attention to the practicability of articles relating to State crime, he said. The reference to "international crimes" by States in the text should be changed to read, "exceptionally serious wrongful acts" by States. The chapter of the Commission's report now being considered only covered general principles on the responsibility of a State for its internationally wrongful acts, rather than all aspects of State responsibility. Its title should be revised accordingly.
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[Note: Article 33 of the Chapter reads, in part: "The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice."]
MARC PERRIN DE BRICHAMBAUT (France) said the Commission's report as a whole lacked coherence and contained many vague legal points that required more precise definition. The concept of international crime, for example, was difficult to pin down. The distinctions made between delicts and crimes were also deficient.
He said that any idea of criminal justice presupposed a moral and social awareness by all States, as well as a legislative organ that could define and punish crimes and take a stand on culpability. It also presumed the existence of a police force to enforce those judgements. None of those elements existed at an international level; that made it difficult to realize any practical application of international criminal justice.
JALILA HOUMMANE (Morocco) said she agreed with the draft's distinction between an international delict and an international crime, and the consequences flowing from each. The separate treatment of such offenses owing to the difference in their degree. International crimes, such as genocide or apartheid, violated a fundamental interest of the international community, while delicts were wrongful acts which were not crimes. Delicts could even include such situations as delay in the payment of foreign debt. She added that the draft's treatment of countermeasures had a potentially negative aspect, since they could be applied between States of unequal power.
ENRIQUE CANDIOTI (Argentina) said there must be flexibility with respect to dispute-settlement procedures. The imposition of a binding settlement would not help improve relations between the concerned States, as tension would be high and communications low. That would make States even less likely to submit their controversies to a third party.
AWN AL-KHASAWNEH (Jordan) said that where lawyers left room for argument, there was room for injustice. The Commission's distinction between crimes and delicts was not justified, since the difference in consequences for the two types of wrongful acts were minor. The availability of countermeasures could encourage States to use them as a means of triggering arbitration.
MAKOTO NAKAMURA (Japan) said the International Law Commission had been working on the issue of State responsibility since its seventh session in 1955. Since that issue was an integral part of international law, its
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codification and progressive development would greatly enhance the rule of law among nations. Japan would take an active part in work on the draft articles.
JOHN DE SARAM (Sri Lanka) said great flexibility was needed for the settlement of disputes. It was important to make every possible effort to reconcile differences through consultations and even through telephone calls. The logistic and financial burdens that could arise in dispute-settlements could be burdensome, particularly for small States such as his own.
MAURICE KAMTO (Cameroon) said the drawing of a distinction between delicts and crimes within international law was timely and had long been a part of national justice systems. The problem posed by that distinction at the international level related to the issue of consequences, which should be given further consideration by the Commission.
He said the main objective of a countermeasure was reparation not punishment. Countermeasures were designed to make the wrong-doing State conform to international law and repair the consequences of its act.
The draft's treatment of dispute settlement was comprehensive. However, it would impose a number of mandatory stages which were not always all necessary.
BRANIMIR ZAIMOV (Bulgaria) said the distinction between crimes and delicts had to be based on the seriousness of their consequences and on the extent of the material, legal and moral injury they caused to other States and to the international community. His country welcomed the Commission's statement that alternative phrases such as "an international wrongful act of serious nature" or "an exceptionally serious wrongful act" could be substituted for the term "crime", thus, avoiding the term's penal implications.
DJAMCHID MOMTAZ (Iran) said countermeasures could be used by certain powers in the pursuit of hegemony. Rather than remedy the action of delinquent States, their use might well poison relations among parties to a dispute. The use of countermeasures must be regulated, and guarantees provided for weaker States. The use of countermeasures should be limited to the State that was the victim of the crime, and it should have a broad range of measures available for its use.
VOLOLYMYR A. VASSYLENKO (Ukraine) said that countermeasures -- known in international law as "sanctions" -- were specific unilateral means of a coercive nature, taken by an injured State against a wrongdoing State. Under international law, such measures could be taken against a State which had committed an international delict or crime. Prior to taking such action the injured State must fulfil its obligation to seek an amicable settlement. The term "sanctions" was preferable to "countermeasures", he said. A mechanism
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for the amicable settlement of disputes caused by internationally wrongful acts should be established.
CATE STEAINS (Australia) said the presence of "State crimes" in the draft articles was steeped with difficulties. Instead of addressing the concept of international crimes, the Commission should focus on the question of State responsibility for delicts as internationally wrongful acts. The Commission's work on countermeasures struck a fair and appropriate balance between the interests of the injured and wrongdoing States, she added.
JOSE ANTONIO PASTOR RIDRUEJO (Spain) said it was difficult to ignore the difficulties and controversies attached to the idea of countermeasures. The usefulness of such measures was conditioned by the different degrees of power of different States, and their application could actually worsen a situation. With respect to dispute-settlement, it would have been preferable if the draft had provided for mandatory recourse to settlement procedures.
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