LEGAL COMMITTEE BEGINS REVIEW OF STATE RESPONSIBILITY FOR ACTS DEEMED INTERNATIONALLY WRONGFUL

Press Release
GA/L/3087

LEGAL COMMITTEE BEGINS REVIEW OF STATE RESPONSIBILITY FOR ACTS DEEMED INTERNATIONALLY WRONGFUL

The Sixth Committee (Legal) this afternoon began discussion of issues involved in State responsibility for internationally wrongful acts, as it took up a section of the International Law Commission's report dealing with the subject.

At its fiftieth session, the Law Commission gave a second reading to a set of 19 draft articles on the question of State responsibility. Some of the provisions cover responsibility of a State for its internationally wrongful acts; the possibility that every State may be held to have committed an internationally wrongful act; elements of an internationally wrongful act of a State; attribution to the State of the conduct of persons acting on behalf of the State; and acts which constitute breaches of an international obligation of a State.

Introducing the Commission's report, its Chairman, Joao Clemente Soares, said a substantive debate was held by the Commission on the distinction between the criminal and the delictual responsibility of States. It also examined possible approaches to international crimes of States, including the elaboration of a full-scale regime of State criminal responsibility.

Speaking on behalf of the Nordic countries, the representative of Denmark, said they believed that the draft articles, as a whole, captured well present-day thinking and practice with respect to responsibility for internationally wrongful acts of States. They further believed that the essential elements were all reflected in the draft.

Statements were also made by the representatives of Hungary, Singapore and Israel.

The Sixth Committee will meet again at 3 p.m. tomorrow, Wednesday, 4 November, to continue its consideration of the report of the International Law Commission.

Committee Work Programme

The Sixth Committee (Legal) met this afternoon to continue consideration of the report of the International Law Commission on the work of its fiftieth session held in Geneva from 20 April to 12 June, and in New York from 27 July to 14 August (document A/53/10 and Corr.1), with a focus on Part Three of the report concerning State responsibility and other decisions and conclusions of the Commission.

The Commission's work on State responsibility began at its seventh session in 1955. In 1975, it adopted a general plan for the preparation of draft articles on the topic with Part One concerning the origin of international responsibility; Part Two, the content, forms and degrees of international responsibility; and a possible Part Three, about settlement of disputes and implementation of international responsibility.

At its fiftieth session, the Commission had before it the comments and observations received from Governments on the draft articles provisionally adopted on first reading. It also received the first report of its special rapporteur, James Crawford, and later established a working group to assist him in considering the various issues involved during the second reading of the draft articles.

In his report, the special rapporteur suggested that the Commission's aim should continue to be laying down the general framework within which the primary substantive rules of international law would operate in the context of responsibility. He suggested three matters that might require further elaboration -- reparation, particularly the payment of interest; erga omnes obligations; and responsibility arising from the joint action of States. A third general issue concerned the relationship between the draft articles and other rules of international law, and the final eventual form of the draft articles.

Introduction of Commission's report

JOAO CLEMENTE BAENA SOARES, Chairman of the International Law Commission, introducing Part Three of its report, said the Commission considered a number of general issues concerning the draft articles on State responsibility. They covered the distinction between primary and secondary rules of State responsibility; the scope of the draft articles; and the inclusion of detailed provisions of counter-measures and dispute settlement. Another issue was the eventual form of the draft articles.

He said that for the first time since its adoption of article 19 of the draft articles -- international crimes and international delicts -- in 1976, the Commission held a substantive debate on the distinction between the criminal and the delictual responsibility of States. (Paragraph 2 of draft

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article 19 states: "An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole, constitutes an international crime". Paragraph 3 lists the acts which might constitute international crime.)

The Commission also considered a number of fundamental issues relating to the notion of State crimes. In addition, possible approaches to international crimes of States were examined, including the elaboration of a full-scale regime of State criminal responsibility in the draft articles; and the exclusion of the notion of State crimes without prejudice to the general scope of the draft articles. An agreement was reached on a number of interim conclusions as to how the Commission should proceed with the second reading of the draft articles in the absence of a consensus on the future of article 19. The Commission decided to set aside draft article 19 for the time being while proceeding to consider other articles.

He said the Commission had identified two specific issues on which the views of Governments would be of particular interest in providing effective guidance for its further work. The first specific issue was whether the conduct of an organ of a State was attributable to it under article 5, irrespective of the jure gestiones or jure imperii nature of the conduct. (Article 5 of the draft text states that the conduct of any State organ shall be considered as an act of that State under international law, provided that organ was acting in that capacity in the case in question.)

The second issue was what appropriate balance should be struck between the elaboration of general principles -- as was the case in the existing text concerning reparation -- and of more detailed provisions, particularly relating to compensation.

Concerning its working methods, Mr. Soares said the Commission had identified the following topics for inclusion in its long-term programme of work: responsibility of international organizations; the effect of armed conflicts on treaties; shared natural resources and expulsion of aliens. Considering its workload, he said the Commission believed that a 12-week session in 1999 was essential to complete its work.

He thanked the governments of Denmark, Finland, Germany, Hungary, Ireland, Switzerland and Venezuela for their voluntary contributions to the United Nations Trust Fund for the International Law Seminar which made possible the organization of the Commission's thirty-fourth International Law Seminar last May, attended by 23 participants. He stressed the importance of the Law Seminars which enabled young lawyers, especially those from developing countries, to familiarize themselves with the work of the Commission and the activities of the many international organizations with headquarters in

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Geneva. He recommended that the General Assembly should again appeal to States to make voluntary contributions to secure the holding of the seminar in 1999 with as broad a participation as possible.

Statements

GYORGY SZENASI (Hungary), referring to the draft articles on trans-boundary harm, urged the Commission not to lose sight of the originally conceived task of elaborating rules on liability. Among the principles represented in the draft text, Hungary supported the notions that freedom of activities had to be counter-balanced by the obligation to prevent or minimize the risk of significant trans-boundary harm. The obligation of prevention required States to exercise due diligence in close cooperation with other States. Countries should have adequate dispute mechanisms at their disposal.

He said he supported the intention to design the articles to have global application. Referring to a balance between the economic interests of States and the interests of States likely to be affected, he said that "over-nationalization" of standards would hamper the uniform application of rules and might defeat the goal of the exercise.

He supported the establishment of a working group to examine the issue of diplomatic protection. On state responsibility, he said that a decision on the eventual form of the relevant draft text should be deferred for the time being. Concerning nationality in relation to the succession of States, he felt it was better for the Commission to concentrate on nationality of natural persons. Since the issues involved with nationality of legal persons were too specific, the practical need for their solution was not evident. On the matter of reservations to treaties, he said there was no need to alter the regime of reservations contained in the three Vienna Conventions. However, there was a need to fill in gaps and clarify areas of possible ambiguity.

MARK JAYARATNAM (Singapore), speaking on the issue of State responsibility, said that determination of when and how a State became an injured State was vital in the allocation of certain privileges, such as the right to claim remedies against the "wrongdoing" State, including counter- measures. It was clear that the Commission was aware that controversy existed with the identification process that bestowed the status of "an injured State."

He said the Commission should investigate particular issues with the aim of clarifying whether, in fact, convention mechanisms should take priority over customary international law. The Commission should further consider the desirability of drafting distinctly separate provisions dealing with the two sources of international law rather than combining as was the case now.

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While he agreed with the general view that the right of States to take counter-measures in response to unlawful acts was permissible under customary international law, he questioned the desirability of providing a legal regime for counter-measures within the framework of State responsibility because of the complexity of the issues involved. Finally, he was not convinced that the draft articles should take the form of an international convention. The principles formulated by the Commission should permit flexibility for international tribunals and States in the application to particular scenarios.

Turning to reservations to treaties, he said there should be no distinction between human rights treaties and other multilateral treaties. On the role of treaty-monitoring bodies set up under various human rights treaties, he said it was for the States parties to decide on the legality of the reservations formulated with respect to a given instrument.

ESTHER EFRAT-SMILG (Israel), referring to the issue of State responsibility, expressed concern that some of the ambiguities in particular articles of the former draft relating to State organs had not been resolved, but simply better hidden. In response to a question raised in the Commission's report, she said that the nature of the conduct, if exercised in the capacity of a State organ, should not present an impediment to the attribution of that conduct to the State. The issue of State responsibility and State immunity must not be confused. The distinction between acta jure imperii and acta jure gestionis operated on the plane of State immunity and not that of State responsibility.

On another issue raised by the Commission -- the balance to be struck between the elaboration of general principles concerning reparation and of more detailed provisions, in particular relating to compensation -- she said the relevant part of the draft left room for improvement, both in form and substance. As an example, the specific reference made to the factors of negligence or wilful acts or omissions did not contribute to the balance of Chapter II, since other equally significant factors appeared to be ignored. In particular, the express singling out of those factors suggested an emphasis on compensation and not on reparation as a whole. She encouraged the Commission to amplify the guidance regarding compensation, either through codification of customary law in that regard, or by reference to the various forms of compensation which were proposed by the Special Rapporteur in 1989 but were not reflected in the current article.

TYGE LEHMANN (Denmark), speaking on behalf of the Nordic countries, said they were satisfied with the progress so far made by the Special Rapporteur on the draft articles. The topic was a monumental one, and the last of the classic themes of public international law to be codified. The Nordic countries believed that the draft articles, as a whole, captured well present- day thinking and practice with respect to responsibility for internationally wrongful acts of States. They further believed that the essential elements

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were all reflected in the draft. Their answer to the two questions put by the Special Rapporteur in paragraphs 35-36 of the Commission's report was that the distinction between acts jure qestionis or jure imperii should not be introduced into article 5. The distinction was extremely difficult to draw and could considerably restrict the possibility of a State being held responsible for committing an internationally wrongful act.

He said the Nordic countries considered compensation to be, in practice, the most relevant element in making reparation for injury caused. They therefore favoured more detailed provisions on that element, in particular regarding the assessment of pecuniary damage, including interest and loss of profits. (The questions were referred to by the Commission Chairman in his introduction of the report.) With reference to the debate on article 19 of the draft, he said the Nordic countries believed that a certain distinction, according to the seriousness of an internationally wrongful act, was warranted, whatever terminology was used. A State which was in breach of the peace, be it by way of a threat to the peace or an act of aggression, should incur particularly severe consequences, as opposed, for example, to a violation of diplomatic privileges and immunities.

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