STATE RESPONSIBILITY CAN ONLY BE CIVIL, NOT CRIMINAL, IN CONTEXT OF INTERNATIONAL LAW, ASSEMBLY'S LEGAL COMMITTEE TOLD

5 November 1998

Press Release
GA/L/3089

STATE RESPONSIBILITY CAN ONLY BE CIVIL, NOT CRIMINAL, IN CONTEXT OF INTERNATIONAL LAW, ASSEMBLY'S LEGAL COMMITTEE TOLD

19981105 As Debate Continues on Report of Law Commission, China Urges Distinction in Degree Between Various Wrongful Acts

As the Sixth Committee (Legal) continued its review of the report of the International Law Commission this morning, the representative of China said it was unrealistic and impractical to introduce the concept of crime in criminal law into the topic of State responsibility or the realm of international law. He said State responsibility could only be civil, not criminal, and he supported efforts for a distinction in degree between various internationally wrongful acts.

The Committee is considering the Commission's work on the question of State responsibility contained in the report on its fiftieth session. In its report, the Commission notes that it had deliberated on a number of fundamental issues relating to the notion of State responsibility, including its civil or criminal law nature. The Commission was examining a set of draft articles on the subject, with some provisions covering responsibility of a State for its internationally wrongful acts.

The representative of India said the concept of State crime was well conceived in the draft articles, and urged a retention of a provision on internationally wrongful acts, despite its many technical difficulties. He agreed with the Commission's effort to distinguish legal injury from material damage, while urging clarification of the notion of an injured State.

Statements were also made by the representatives of Slovenia, Czech Republic, Bahrain and Italy.

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

Committee Work Programme

The Sixth Committee (Legal) met this morning 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 see Press Release GA/L/3087 of 3 November.)

Statements

MIRJAM SKRK (Slovenia), referring to the issue of State responsibility, said the notion of State crime tackled one of the most fundamental questions of international law, including the legality of the use of force as a counter-measure against aggression. Therefore, State crime should be treated with all academic wisdom and expertise, as well as with political prudence and experience. She was of the opinion that international crimes, as wrongful acts committed by States with legal consequences beyond ordinary international delicts, should be retained in the future Commission text.

Any comparison with criminal responsibility of an individual, natural or legal person according to internal law might be confusing and misleading. State responsibility for international crimes should not entail a punitive character but, the consequences were more far-reaching than those of international delicts.

On nationality, in relation to the succession of States, she said she supported the view that in the case of the dissolution of a State, the principle of continuity of the secondary nationality -- the one attributed to an individual by the former federal unit -- should prevail over the principle of permanent residency for attaining the nationality of a successor State. It would be very helpful if the Commission prepared an instrument with basic principles for regulating the question of nationality of legal persons and the succession of States.

She said the draft guidelines on reservations to treaties were well balanced, and a good basis for the future work of the Commission. The explanation that interpretative declarations formed an inevitable part of treaty law was convincing and she had no objection to the Commission's approach in that respect.

MARTIN SMEJKAL (Czech Republic), speaking on State responsibility, said he hoped the Commission would make progress in its second reading of the draft articles on the topic. It was his delegation's opinion that the rules regarding counter-measures should find an appropriate place in the provisions on responsibilities. The issue should be studied carefully during the

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Commission's second reading of the articles. He favoured a substantive distinction between the criminal and delictual responsibility of States. The Commission should find a pragmatic solution to the problem. The international responsibility of States in no way excluded their international criminal responsibility. He recalled the Commission's view that State responsibility was in some sense a unified field, notwithstanding the fact that distinctions were made within it between the obligations of interest to the international community as a whole and obligations of interest to one or several States. The Commission should find the proper balance during its second reading of the draft articles.

HUSSAIN M. AL-BAHARNA (Bahrain), addressing all the topics covered in the report, said customary law should form the basis of the Commission's approach to the question of diplomatic protection. The topic should deal only with secondary rules of international law. The exercise of diplomatic protection was basically the right of a State which could employ it at its own discretion. On the question of unilateral acts of States, his delegation supported focus on the study of unilateral declarations only, excluding broader issues of unilateral expression of the will of the State. The study of the topic should take the form of draft articles with commentaries, he said.

His delegation felt that the formula adopted in the draft articles on "prevention of trans-boundary damage from hazardous activities" appeared to represent an acceptable compromise. Further work on the question of "nationality in relation to the succession of States" should be based on the second option provided for in the Commission's report. That meant the study should be kept within the context of State succession, covering as well questions such as the status of legal persons. Reservations to treaties was a fundamental aspect of international law, he said. There should be no separate regime for reservations for normative or human rights treaties. To do so would be confusing and unnecessary.

UMBERTO LEANZA (Italy) speaking on State responsibility, said the distinction between international crime and international delict should be retained within the context of State responsibility. Crimes and delicts each entailed different consequences, with the former involving the gravest violations that resulted in consequences that affected the international community as a whole. Therefore, the draft articles should deal not only with illicit acts but also their consequences. He attributed fundamental importance to the fact that the draft dealt with settlement of disputes. Any convention on State responsibility for illicit acts must have a provision for a settlement of differences over its interpretation and application.

He supported that idea that the draft deal with State liability for particularly serious international illicit acts. Differences in the liability regime should be codified and supplemented to make reactions to those acts more effective and at the same time to avoid abuses. He appreciated the

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clarity and succinct nature of the draft articles. They had been considerably simplified with most superfluous details deleted. Concerning one of the questions raised by the Commission, he said a possible distinction between jure gestionis and jure imperii was of no importance in the present context. In addition, as had been seen in other areas of work of the Commission, such a distinction was very difficult to define.

On the long-term work of the Commission in general, he said it should meet States' needs in the area of the progressive development and codification of international law. He agreed that the Commission should deal not only with traditional subjects but also with new trends in international law as well as issues that reflected the concerns of the international community as a whole.

RUP CHAND PAL (India) referring to diplomatic protection, said the new emphasis on the rights of the individual, without minimizing the right of State of nationality, was an important aspect of the matter. That emphasis was even more relevant today where the transnational movements of individuals and the identification of their rights independently of the rights of the State of their nationality, particularly in the field of trade and economic relations, was well established. Exhaustion of local legal remedies available to the individual was an added element for consideration.

Concerning unilateral acts of States, he agreed that those acts represented not a source of international law but of international obligations. The legal effect of silence of a State or implied consent to perform specific obligations, or acts constituting estoppel -- precluding the assertion of something contrary to previous implication -- should be included within the scope of the topic. Conditions under which obligations created by unilateral acts could be revoked should also be studied.

On State responsibility, he said he agreed with the effort of the Commission to distinguish legal injury from material damage. However, the notion of an injured State should be clarified. It was important to recognize that designating every State as an "injured State" and granting a full range of responses to "crimes", including the right to take counter-measures, was likely to lead to the danger of abuse. The concept of State crime was well conceived in the draft and despite its many technical difficulties, he urged the Commission to retain that concept of crime in article 19.

He endorsed the approach of the Commission that any preparation of a guide on reservations to treaties should not disturb the Vienna conventions. No distinction should be drawn between human rights treaties and other multilateral treaties.

YIN YUBIAO (China) said an act of a State that did not violate international law but produced injurious consequences was not relevant to the topic of State responsibility. It was covered by the subject of "International Liability for injurious consequences arising out of acts not

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prohibited by international law", a subject now under discussion in the International Law Commission. He said the various draft articles dealing with State responsibility, after their revisions, gave a comprehensive explanation of both its origin and conduct attributable to a State in accordance with international law.

It was unrealistic and impractical, in theory, he said, to introduce the concept of crime in criminal law into the topic of State responsibility or the realm of international law. Since the international community was made up of States with equal sovereignty, there was no organ that had criminal law jurisdiction over a State. It was therefore impractical to find a State guilty and punish it. It was also difficult to comprehend that a State that included people in a collective sense could be indicted, he said. The Chinese delegation believed that State responsibility could only be civil, not criminal, and it supported efforts to make a distinction in degree between various internationally wrongful acts. It proposed deletion of provisions in the draft text concerning State responsibility for those wrongful acts.

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