QUESTION OF 'STATE RESPONSIBILITY' SAID TO BE MAIN OBSTACLE IN PROMOTING INTERNATIONAL RULE OF LAW, LEGAL COMMITTEE TOLD

4 November 1998

Press Release
GA/L/3088

QUESTION OF 'STATE RESPONSIBILITY' SAID TO BE MAIN OBSTACLE IN PROMOTING INTERNATIONAL RULE OF LAW, LEGAL COMMITTEE TOLD

19981104 Debate Continues on Commission Report; Call for Agreement On Procedures to Criminalize 'Heinous Behaviour' by Individuals

The matter of State responsibility, having been on the agenda of the International Law Commission since 1949, clearly revealed -- more than any other issue -- the obstacles and difficulties the international community still faced when promoting the rule of law in international relations, the representative of Portugal told the Sixth Committee (Legal) this afternoon, as the Committee continued its examination of the report of the law commission's report.

The representative of Ireland said that while there was some merit in distinguishing between wrongful international acts in accordance with their degree of gravity, criminal responsibility was first and foremost a matter of individual moral responsibility. The best way forward was to get universal agreement that particularly heinous behaviour on the part of individuals should be criminalized and to establish the necessary procedures and institutions at the international level to ensure that human beings were called to account for such behaviour.

Also speaking this afternoon were the representatives of Myanmar, Iran, Malawi, France, Viet Nam, Guatemala, Bulgaria and Algeria. The observer of Switzerland also made a statement.

The Special Rapporteur, Vaclav Mikulka, responded to comments by delegations on the issue of nationality in relation to succession of States. The Special Rapporteur, Alain Pellet, responded to comments on reservations to treaties.

The Sixth Committee will meet again at 10 a.m. tomorrow, 5 November, to continue 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. (For more details about the subject, see Press Release GA/L/3087).

Statements

KYAW WIN (Myanmar) said his country had endeavoured to build up and strengthen its existing legal system that had been inherited at its independence 50 years ago. That effort was not just to modernize existing laws, but also to promote the rule of law within the Union of Myanmar, especially in those territories that had only recently seen a cessation of armed insurgencies. The six substantive topics considered by the Commission were of great present-day relevance to international realities where new States were being born, divided States were being united and globalization of trade and technology had led to closer contact. The topics clearly spelled out international laws in order to avoid unnecessary complications and problems in the international arena.

JAVAD ZARIF (Iran), in general comments on topics in the Commission's report, said that with the codification of clear provisions for diplomatic protection by the Commission, avenues for possible abuses of that institution should be closed. Due to divergent forms of acts of States and, in the absence of a coherent doctrine encompassing all types of unilateral acts, the Commission's work should constitute the progressive development of international law in that area. A clear framework for the project should be established.

On the question of nationality in relation to the succession of States, he said Iran concurred with the Commission's conclusion that in the absence of positive comments by States, its work on the topic should be limited to the nationality of natural persons. He welcomed the completion by the Commission of the formulation of the first set of 17 articles on the sub-topic of prevention of trans-boundary damage.

Addressing the issue of State responsibility, DJAMCHID MOMTAZ, also of Iran, said there was an inherent difference between criminal and delictual responsibility of States. An objective determination of the violation of obligations was necessary. The International Court of Justice should be the best organ to provide impartiality in determining violations. The application of the right to countermeasures created a high risk of abuse and should be

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granted only to an injured State. He said the Commission should consider the issue further and provide criteria. To prevent abuses, he said, the Commission should develop international law on the question. Clear and precise means should be drawn for the application of countermeasures.

It would be necessary for provisions to be made for the conduct of good faith negotiations and a timetable for their completion. That could reassure an injured State. Extreme countermeasures which affected political independence or territorial integrity of States should not be allowed. Countermeasures should be proportional to the injury inflicted on a State. The Commission could examine measures adopted against "so-called pariah States", he said.

TREVOR CHIMIMBA (Malawi), referring to the draft articles on State responsibility, agreed that for purposes of attribution, no distinction should be drawn between acta jure imperii and acta jure gestionis. The distinction seemed untenable for purposes of State responsibility. He spoke of the effort to determine the status of an "organ" of the State, as well as the question of attribution to the State of conduct of separate entities empowered to exercise elements of governmental authority, especially where such entities were privatized. He said there was no doubt that internal law would be relevant in certain circumstances, but it was not always the decisive factor. If there were no disagreement on that basic proposition, its strength might be better observed in its reference being omitted from the body of the draft articles.

He said he favoured retaining a distinction between international delicts and international crimes; however, he was willing to explore alternative wording that avoided the penal implication of the latter term. Concerning "objective" responsibility, he said that any distinction did not always have to entail an automatic distinction in the consequences, particularly with regard to reparation. In expressing appreciation that the Commission held the second segment of its session in New York, he said the possibilities of enhancing further contacts between members of the Commission and representatives of governments covering the Sixth Committee based in New York were enormous.

FRANCOIS ALABRUNE (France), addressing the topic of State responsibility, said France had serious reservations about the draft articles on the topic. The Commission should not spend time on primary rules, but must confine itself to secondary rules of a procedural nature. France had always been critical of the idea of an international crime as defined in draft article 19 of the text on State responsibility. The existence of damage was an essential element in the determination of State responsibility, and an integral part of it.

The expression "injured State" embodied in the draft articles was ambiguous, he said. Provisions on countermeasures were not appropriate for

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draft articles which covered State responsibility. A countermeasures regime might in itself warrant a separate study by the Commission and had no place in a law on State responsibility.

On the Commission's working methods and long-term programme of work, he said, France believed that the Sixth Committee must give some thought to the way it saw its relations with the Commission. The Committee should provide guidelines and also conduct an authentic dialogue, proposing topics for study by the Commission. The Commission should carry out a study on countermeasures and also give some thought to the concept of "legal person" in its future work, he added.

CALHEIROS DA GAMA (Portugal), speaking on the issue of trans-boundary harm, said his country had always favoured commitment to preventive action, in particular when it included the obligation of making environmental impact assessments. Nevertheless, he considered it essential to establish a duty to pay compensation if harm occurred. A future international legal instrument should cover both prevention and compensation. He awaited with considerable interest the work of the Commission on liability, and strongly encouraged its rapid progress. On diplomatic protection, he said that it should include the protection claimed by international organizations for the benefit of their agents, for which there were existing precedents in international case law.

Concerning State responsibility, he agreed that without necessarily using the term "crime" there was a qualitative distinction in international law between minor breaches of such law and international wrongful acts.

Referring to nationality in relation to State succession, he strongly supported the maintenance of the fundamental principle of the right of option in case of succession of State, and its application to the maximum extent possible. He believed that right was a powerful instrument in avoiding "grey areas" of competing jurisdictions, be they of a positive or negative character.

He said it was often unclear which reservations to treaties were acceptable and what effect objections had on reservations. Since there were no specific consequences attached to the formulation of objections by other parties, no matter how numerous they were, the result was that often the State became, in practical terms, the sole judge of the compatibility of reservations with the object and purpose of a given treaty. While the Vienna Conventions needed to be preserved, they were fundamentally incomplete and urgently needed to be supplemented so as to clarify which reservations were deemed admissible and which were inadmissible.

PHAM TRUONG GIANG (Viet Nam) said that regulating harmful activities should accord with basic principles of international law, such as sovereignty of States and peaceful settlement of disputes. The definition of activities

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not prohibited by international law should apply, as well as the scope of the instrument being elaborated. Certain definitions crafted by the Commission in the draft articles on prevention of trans-boundary damage from hazardous activities were ambiguous and could lead to different interpretations or misinterpretations.

He welcomed the idea that States were to take all appropriate measures to prevent or minimize the risk of causing significant harm to others. Nevertheless, there remained a need to deal with harm of a lesser degree, that was not considered as "significant". He took note of the provision that the "prior authorization" of a State was required for activities within the scope of the draft articles. However, whether that authorization was to be granted by the original State or the State most likely affected by those activities was not yet clear.

ROBERTO LAVALLE-VALDEZ (Guatemala) spoke of the different types of reservations to treaties, such as exclusive reservations and extensive reservations, and the conditions under which they might be deemed admissible. Sometimes extensive reservations were often better described as examples of unilateral acts of States. He believed that it was possible to consider as a reservation a declaration that sought to increase the obligations of other parties to a treaty. A unilateral declaration by one State could not impose obligations on third parties. Concerning the distinction between reservations to treaties and interpretative declarations, he said that an interpretation of a treaty had to have a minimum degree of plausibility, otherwise it was really just a reservation in the guise of an interpretative declaration. If there was a plausible basis to an interpretative declaration, as opposed to a reservation, it then had no legal effects. He emphasized the importance of the future work of the Commission with respect to those issues.

JAMES FARRELL (Ireland), speaking on the issue of State responsibility, said that while there was some merit in distinguishing between wrongful international acts in accordance with their degree of gravity, he shared the view of those who saw criminal responsibility as first and foremost a matter of individual moral responsibility. The best way forward was to get universal agreement that particularly heinous behaviour on the part of individuals should be criminalized and to establish the necessary procedures and institutions at the international level to ensure that human beings were called to account for such behaviour.

Concerning the Commission's decision to recommend a regime of prevention, as distinct from a regime of liability, on trans-boundary damage, he said it was necessary to have regard for the question of liability in situations where harm did occur, so as to ensure that the innocent victim was not left to bear the damage alone. He joined others in urging the Commission to continue to have regard for that aspect of the topic. The Commission's work on reservations to treaties would be of great value in filling gaps left

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open by the Vienna Conventions. He noted with particular interest the comments of delegations who had drawn attention to the issue of reservations insofar as they concerned human rights treaties, and looked forward to completion of the Special Rapporteur's work on that extremely important and highly relevant topic. Referring to the future work of the Commission, he said the Commission should not restrict itself to traditional topics but should also consider topics that reflected new developments in international law and pressing concerns of the international community as a whole.

VLADIMIR SOTIROV (Bulgaria), speaking on State responsibility, said there was a qualitative distinction in international law between the most serious internationally wrongful acts, which affected the interest of the international community as a whole, and other wrongful acts. The consequences of an internationally wrongful act could not be the same in the case where the act impaired the general interests of the international community, as in a case where it affected only the interests of one State. A clear distinction needed to be drawn between more and less serious wrongful acts. He shared the opinion that the distinction between the two categories of violations was to be found in existing law and State practice.

Concerning the question of the distinction between "criminal" and "delictual" State responsibility, he was not in favour of developing a regime of criminal responsibility of the State and of the "penalizing" of that responsibility. The law of State responsibility was neither civil nor criminal and was purely and simply international.

AHCENE KERMA (Algeria), addressing the topic of nationality in relation to succession of States, said profound political changes that had occurred in recent years had lent urgency to the question. The Commission's draft articles on the subject provided timely opportunity for the elaboration of rules to help States resolve problems they faced on the question. He welcomed the attention paid by the Commission to the importance of family units, and also favoured a pragmatic approach to dealing with the problem. He said the question of the nationality of legal persons was much more important than that of a natural person.

On the topic of reservations to treaties, he said there were some gaps in the existing laws, and that some ambiguities could give rise to misinterpretation. His delegation was interested in the Commission's final conclusions on the distinction between reservations and declarations on treaties. On a different topic, he said it was up to States to forestall harmful consequences of hazardous activities. International law imposed certain obligations upon States causing damage, he said. The particular situation of developing countries should be taken into account, considering their vulnerability.

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He said it was clear that without the full cooperation of the Sixth Committee and governments the Commission would not be able to fully discharge its mandate. The Commission should concentrate on subjects likely to result in consensus, he said, adding that his delegation supported the subjects selected by the Commission for its future work.

DIDIER PFIRTER, observer of Switzerland, said his delegation supported the method adopted by the Commission to determine reservations. None of the three Vienna Conventions completely defined reservations. He said the draft's definition of reservations gave the impression that their modification could have a wider legal effect. The modification should be limited. Reservations should also be limited to the treaty itself and not its application. On reservations having territorial scope, he said States should be able to apply them to cover certain issues.

VACLAV MIKULKA, Special Rapporteur on the topic of nationality in relation to succession of States, responded to comments and issues raised by representatives during the discussion of the Commission's report. He said the Commission completed the first reading of the draft articles on natural persons at its forty-ninth session last year. He observed that several governments had submitted written comments on them and he hoped others would do so. He assured the Committee that he had taken note of those observations and hoped the Commission would complete its second reading of the draft articles at its spring session in 1999.

ALAIN PELLET, Special Rapporteur, responding to comments made by delegations on reservations to treaties, said the Sixth Committee must give the International Law Commission precise and comprehensive guidance, a practice which was not yet the case. It was up to the Sixth Committee to reflect on the ways and means of improving the Commission's annual report as well as the relationship between the two bodies.

He noted that only 26 delegations had spoken on the matter of reservations to treaties, far fewer than last year. He said that was perhaps because this year's report had dealt primarily with definitions of reservations, and unfortunately not yet with alternatives to reservations. He noted that there was a consensus on preserving the achievements of the Vienna Conventions. He did not believe it was advisable to attempt to change definitions used in the Vienna Conventions. Therefore, the Commission had worked with those definitions.

There had been a convergence of views, with all agreeing that a State could not be given more rights through the expression of a reservation to a treaty. However, he had not yet found a way to express that in a draft article. Despite the suggestion by some delegations, he was not convinced that nothing should be said about extensive reservations in the practice guide owing to the complications. It was the Commission's task, he said, to try to

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resolve difficult tasks. It would not be good policy for the Commission to evade tackling the obstacles. He also did not share the opinion of some delegations that a definition of reservations was simply of theoretical and academic interest.

Concerning specific draft guidelines, he said he was struck by the fact that many delegations felt that the wording in the drafting of article 111 could be construed as confusing and said he would take up that particular article again. In light of the valuable suggestion by a delegation, he wondered whether there should be a redrafting of article 112 to include a reference to succession of States. He added that he was also struck by the fact that at least three States had pointed out that neither his report nor that of the Commission had dealt with a dispute mechanism concerning reservations. He found it a worthwhile suggestion.

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