NORMS OF STATE RESPONSIBILITY FOR INTERNATIONAL WRONGFUL ACTS EXAMINED IN SIXTH COMMITTEE

Press Release
GA/L/3124

NORMS OF STATE RESPONSIBILITY FOR INTERNATIONAL WRONGFUL ACTS EXAMINED IN SIXTH COMMITTEE

The Sixth Committee (Legal) this afternoon began its discussion of the International Law Commission’s long-standing efforts to draw up an instrument to govern State responsibility for internationally wrongful acts, in the course of its ongoing examination of the Commission’s report on its 1999 session.

The Chairman of the Commission introduced that part of the Commission's report on its discussion on State Responsibility. He stressed the provisional nature of the draft articles, and asked Governments for specific comments on a definition of "injured State" and draft articles that dealt with cessation and reparation and with countermeasures.

Speaking in the discussion were the representatives of Spain, Argentina, France, Portugal, the Netherlands and Poland.

The representative of Spain said the Commission’s many years of work by on State responsibility should lead to the conclusion of an international convention, which would be of the utmost importance. Formulations approved in 1996 had been the fruit of decades of work under the direction of eminent specialists. Therefore, any change to the draft should be carefully justified.

The speaker for Argentina said international law could only tolerate countermeasures as an extreme remedy and in exceptional circumstances. It was necessary to have clear and detailed regulations. Several of the articles provided a good starting point. She expressed misgivings, however, about the link between countermeasures and mandatory arbitration and urged the Commission to explore alternatives.

The representative of France welcomed the Commission’s idea to draw a distinction between States specifically injured by an internationally unlawful act and other States with a legal interest in the performance of the obligations concerned. France had clearly indicated the need for spelling out the concept of an injured State.

The speaker for Poland said clarification was needed on the issue of the implication of one State in internationally wrongful act of

Sixth Committee - 1a - Press Release GA/L/3124 21st Meeting (PM) 29 October 1999

another State. Recent developments showed that non-responsibility of member States for the acts of an international organization was a separate subject of international law that could not be excluded. Poland did not share the Commission’s view on circumstances precluding wrongfulness, he said.

Portugal’s representative, speaking on nationality in relation to the succession of States, stressed that the problem of family unity was a major humanitarian concern and should be fully addressed by the Commission. The draft articles provided important guidance to States in a process of succession. He welcomed the provisions relating to: the obligation of States to avoid causing statelessness; the presumption of nationality; and the right of a child to nationality. It supported the retention in the draft articles of clear principles on family unity, non-discrimination and prohibition of arbitrary decisions concerning nationality.

The Committee will meet again on Monday, 1 November at 3 p.m. to continue the discussion on State responsibility.

Statements

ZDZISLAW GALICKI (Poland), Chairman of the International Law Commission, introduced the Commission's report on the topic, stating that it had completed an article-by-article consideration of the draft articles of Part I – Origin of international responsibility. He reminded the Sixth Committee of the provisional nature of the draft articles.

He said the Commission would welcome comments of governments on specific questions and issues concerning draft articles in Part II, dealing in particular with, among others, the definition of "injured State" and the legal consequences of that definition. The other issues concerned the articles dealing with cessation and reparation and the articles dealing with countermeasures.

The Commission also requested comments on the drawing of a distinction between a State or States specifically injured by an internationally wrongful act, and other States that had a legal interest in the performance of relevant obligations. He also referred to the link between the taking of countermeasures and compulsory and arbitration.

Another issue was whether the draft articles could provide the framework for dealing with questions raised by the existence of a plurality of States involved in the breach of an international obligation or injury by an internationally wrongful act.

The Chairman said the Commission had completed its consideration of the remaining chapters (three to five) of Part I, and undertook a preliminary consideration of the question of countermeasures and its relationship with Part II of the draft articles.

Broad support was expressed in the Commission for its Special Rapporteur's general approach to rationalizing the draft articles in Chapter III –- settlement of disputes, he said. The Commission had considered such questions as the existence of a breach of an international obligation; conflicting international obligations; the relationship between wrongfulness and responsibility; and expended obligations of result. Also considered were obligations of prevention; completed and continuing wrongful acts; composite and complex acts and the exhaustion of local remedies. The question of the distinction between primary and secondary rules was also discussed in the context of Chapter III.

The Commission had also given a second reading to Chapter IV of Part I, dealing with the implication of a State in the internationally wrongful act of another State. The Commission had noted that Chapter IV did not take into account other norms such as jus cogens and erga omnes obligations. Emphasis had been placed on reviewing the theoretical premises and the positioning of the various articles of the draft, on the basis of a more “objective” paradigm in which the commission of a wrongful act entailed responsibility even when there was no damage.

The Commission had considered various matters under the rubric of Chapter I, including the question of assistance or direction to another State to commit an internationally wrongful act dealt with by article 27. As regards article 28, concerning the Responsibility of a State for coercion of another State, he said the Commission had worked on the assumption that "coercion" was used in the draft articles in the strong sense, and did not cover persuasion, encouragement or inducement.

The Commission had dealt next with Chapter V, concerning circumstances precluding wrongfulness. At issue, he said, were the “general” excuses which were available to States in respect of conduct which would otherwise constitute a breach of an international obligation. He said an intensive debate had taken place on the inclusion of the defence of consent in the draft articles, which resulted in a referral to the drafting committee. The Commission had also examined the grounds for the preclusion of wrongfulness found in Chapter V, namely self-defence, force majeure, distress and necessity.

There had been a proposal to add two new grounds of preclusion, namely compliance with a peremptory norm, and non-compliance caused by prior non-compliance by another State. The former related to how the system established by the Vienna Convention on the Law of Treaties operated in cases of jus cogens. The second new provision dealt with the maxim exceptio inadimplenti contractus (non-compliance caused by prior non-compliance by another State), which he said was well established in the traditional sources of international law. The Commission also had considered a proposal to insert a further article dealing with the procedure for invoking a circumstance precluding wrongfulness. The text had subsequently been transmitted to a drafting committee.

The Commission’s Chairman highlighted another article in Chapter

V, namely article 30, dealing with the taking of countermeasures as a

circumstance precluding wrongfulness, which had received special

attention. While general agreement had been expressed in the Commission

for the retention of the article, it had been recognized that its fate

was linked to the outcome of the Commission's consideration of the

regime of countermeasures in Chapter III of Part II.

AURELIO PEREZ GIRALDA (Spain) said the more than 40 years of work by the Commission on State responsibility should lead to an international Convention of the utmost importance. The proposals contained in the project approved in 1996 were the fruit of decades of work under the direction of eminent specialists. Therefore, any change to the draft should be carefully justified. There was insufficient justification for deleting the distinction between behaviour and result. Although the distinction was more conceptual than normative, it had proved useful in practice and in jurisprudence.

The provision concerning the prior exhaustion of internal remedies must also be maintained, he said. The future codification of diplomatic protection should not be used as an impediment in reference to that issue in terms of the international responsibility of States. Article 29 on consent as a circumstance that excluded illegality should also be maintained. It was not necessary to add any new circumstances that excluded illegality.

On countermeasures, he said the second part should establish the conditions and limits of their application and procedures for resolutions of controversies that might arise as a result. He agreed that the provision on a restrictive approach to recourse should be maintained. The commentary on the issue was sufficiently rich and could be updated in accordance with recent practice.

Turning to nationality in relation to the succession of States, he

described the text as concise and balanced but said that the draft

articles while confirming state jurisdiction to regulate nationality,

sometimes strayed from state practice. He agreed with the decision not

to pursue work on legal persons. On jurisdictional immunity of States

and their property, he expressed support for the direction of the

conclusions in the report of the working group.

SILVIA FERNANDEZ DE GURMENDI (Argentina) said a definition of “injured State” was crucial, given its direct link to “damage” and to a distinction between international crimes and delicts. The list on injured States in article 40 was not exhaustive. It failed to mention bilateral customs and did not include violations of obligations assumed through unilateral acts. The exclusion of such norms from the list could lead to confusion. Argentina favoured making a distinction between a State or States specifically injured by a wrongful act and other States. Even before a violation of an ergo omnes nature, one had to distinguish between the State directly affected and other States. She believed that only the State directly affected was entitled to damages.

She noted the Commission’s observation that the question of compensation could be elaborated in greater detail. Article 44 on that subject could be complemented by the various rules from State practice and international law. As for terms of satisfaction, she had reservations on that article, which stated that in the case of manifest infringement of the rights of the injured State, the injured State could ask for compensation corresponding to the gravity of the violation. Such a norm was not based on practice nor did international law allow material compensation for a moral damage by another State. The proposal on that article went beyond what was advisable.

On the question of countermeasures, she said international law could only tolerate those acts as an extreme remedy and in exceptional circumstances. It was necessary to have clear and detailed regulations. Articles 47 through 50 provided a good starting point. She expressed misgivings about the link between countermeasures and mandatory arbitration. She urged the Commission to explore alternatives.

RONNY ABRAHAM (France) said his country welcomed the Commission’s idea to draw a distinction between States specifically injured by internationally unlawful act and other States with legal interest in the performance of the obligations concerned. The question was whether that should be carried out.

France had clearly indicated in its written comments to the Commission that it was necessary to spell out the concept of injured States. States could not introduce claims that were not identifiable and precise. International responsibility should be limited to protection of the rights of the State itself. It should not be extended to the protection of international legality per se, he said. A State might be considered to have been injured if it suffered from violation of established right or rights set forth in an instrument.

On the issue of international liability for injurious consequences arising out of acts not prohibited by international law (prevention of transboundary damage from hazardous activities), he said France had already submitted its comments on the draft articles, which it found satisfactory. He noted that the Commission’s Special Rapporteur had offered three options concerning future work on the question of liability. The first option was to continue with the topic and finalize some recommendations; the second, to suspend work until the Commission completed its second reading of the draft articles on prevention; and the third was for the Commission to suspend work on the topic until it was given a revised mandate.

He understood that abandoning the second part of the draft articles would mean that the Commission would concentrate on current topics on its agenda. The Commission should consider ways to balance the interests of the State from which the wrongful activity originated and those of the affected State.

If the Commission decided not to pursue work on International liability, developing the principle of prevention of transboundary activity might not be useful. France was not opposed to the idea of the Commission temporarily suspending its work on the topic. If it decided to continue with the project, it should consider the position of States who would not accept responsibility if their lawful actions caused transboundary damage.

TIAGO P.CUNHA (Portugal), on the topic of nationality in relation to the succession of States, reaffirmed support for the text’s emphasis on human rights. Portugal considered the respect for the free will of persons concerned and consequently, the free choice of nationality, as fundamental. It welcomed the provisions relating to: the obligation of States to avoid causing statelessness; the presumption of nationality and the right of a child to nationality. As in the past, it supported the maintenance in the draft articles of clear principles of family unity, non-discrimination and prohibition of arbitrary decisions concerning nationality.

Portugal stressed that the problem of family unity was a major humanitarian concern and should be fully addressed. Although it understood that the expression “appropriate” measures in article 12 was intended to exclude only unreasonable demands of persons concerned, Portugal would prefer to see such provision drafted with a more precise and affirmative wording. He said the draft articles provided an important guidance to States in a process of succession.

He said the adoption of the draft text on nationality in relation to succession of States as a declaration should not rule out the possibility of subsequent elaboration of a multilateral binding instrument on the same principles. That would be the most appropriate form for ensuring the full exercise of those rights by individuals.

On the question of jurisdictional immunities of States and their property, he said Portugal considered that a convention on State immunity was a desirable aim that the Commission should pursue. It took note with interest the idea of a model law to provide a set of authoritative norms to assist domestic legislators and courts.

JOHAN LAMMERS (Netherlands) approved of a new formulation in article 16 -– to the effect that there was a breach of international obligation by a State when an act was not in conformity with what was required of it, regardless of the act’s origin or character. He also agreed with the modification of article 18, limiting it to the general rule that an act of a State shall not be considered a breach of international obligation unless the State was bound by the obligation at the time the act occurred. He further agreed with the decision to delete articles 20, 21 and 23, which made a distinction between obligations of conduct, of result and of prevention, as the distinction lacked clarity and their deletion did not entail any consequences for the rest of the draft articles. He agreed with the reformulation of article 24 dealing with the extension in time of international wrongful acts. It was difficult to distinguish clearly between composite acts and complex acts. A regime applying to composite acts would govern complex acts as well. He had doubts, however, about the narrower understanding of the concept of composite acts. He expressed appreciation for the proposed reformulation of articles 27 and 28 on forms of complicity of one State in the international wrongful acts of another State.

He favoured the retention of article 29 on consent. He supported the proposed inclusion of a new article mentioning compliance with peremptory norm of international law as a circumstance precluding wrongfulness. It was necessary to maintain an article in chapter V of part one on countermeasures, as it constituted an important circumstance precluding wrongfulness. The concept should also be dealt with in chapter II of part two.

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