MEMBERS OF LEGAL COMMITTEE OFFER SUGGESTIONS ON STATE RESPONSIBILITY

Press Release
GA/L/3125

MEMBERS OF LEGAL COMMITTEE OFFER SUGGESTIONS ON STATE RESPONSIBILITY

The Sixth Committee (Legal) this afternoon continued its discussion of the International Law Commission’s efforts to codify an instrument to govern international responsibility of States for wrongful acts. The Committee first took up the question on Friday, 29 October, in the course of its ongoing examination of the Commission’s report on its 1999 session.

The representatives of Denmark (on behalf of the Nordic countries), Japan, Austria, Singapore, Chile, Slovenia, Czech Republic, Indonesia, Slovakia and China made statements. The observer for Switzerland also spoke.

Several speakers made suggestions for additional elements to be included in the Commission's draft articles on State responsibility. The speaker for the Nordic countries, for example, favoured more detailed provisions on the question of compensation, particularly regarding the assessment of pecuniary damages, including interest and loss of profits.

The Chinese representative said the preclusion of wrongfulness must be clearly defined and narrowly restricted. The representative of Slovenia suggested the addition of a non-discrimination clause to measures of constraint against foreign State property. The observer for Switzerland said the Commission should think about adding a provision that wrongful conduct could be attributed to several States when they acted in concert to commit an internationally wrongful act.

The Sixth Committee will meet again tomorrow, Tuesday, at 10 a.m. to continue its consideration of the issue of State responsibility.

Programme of Work

The Sixth Committee (Legal) met this afternoon to continue debate on the more-than-40-year effort of the International Law Commission to draw up an instrument to govern State responsibility for internationally wrongful acts.

In response to General Assembly resolution 799 (VIII) of 7 December 1953, the Commission decided in 1955 to begin studying State responsibility, and appointed a Special Rapporteur on the subject. In 1975, it adopted a general plan for the preparation of draft articles, comprising: Part I, concerning the origin of international responsibility; Part II, on the content, forms and degrees of international responsibility; and a possible Part III to cover settlement of disputes and implementation of international responsibility.

Part I contains five chapters covering: general principles; the “act of the State” under international law; breach of an international obligation; implication of a State in the internationally wrongful act of another State and circumstances precluding wrongfulness. Part II has four chapters dealing with: general principles; rights of the injured State and obligations of the State which has committed an internationally wrongful act; countermeasures and international crimes. Part III has one chapter -- on settlement of disputes.

The Commission provisionally adopted in 1980 Part I of the draft articles, concerning “the origin of international responsibility”. In 1995, it provisionally adopted, for inclusion in Part II, draft articles dealing with: cessation of wrongful conduct; reparation; restitution in kind; compensation; satisfaction (guarantees of non-repetition); countermeasures by an injured State; proportionality and prohibited countermeasures.

Also in 1995, the Commission provisionally adopted, for inclusion in Part III, draft articles on: negotiation; good offices and mediation; conciliation; the task of the conciliation commission; arbitration; terms of reference of the Arbitral Tribunal; validity of an arbitral award; and Annex, covering a conciliation Commission and arbitral Tribunal.

In 1996, the Commission completed its first reading of the draft articles of Parts II and III on State responsibility and decided to transmit the text to Governments for comments.

The Commission established a working group on State Responsibility in 1997 to address matters arising in the second reading of the text. It also appointed a new Special Rapporteur, James Crawford.

The General Assembly, in 1997, recommended that the International Law Commission continue its work on State Responsibility.

Last year, the Commission had before it the first report of its latest Special Rapporteur which dealt with general issues relating to the draft articles, the distinction between “crimes” and “delictual responsibility” and articles 1 to 15 of Part I of the draft. At its latest session (3 May to 23 July 1999), the Commission had before it comments and observations received from Governments on the draft articles, and the second report of its Special Rapporteur, which consisted of five parts. The first related to Chapter III (Part I) of the draft articles dealing with breach of an international obligation. The second related to Chapter IV (Part I) covered the implication of a State in the internationally wrongful act of another State. The third focused on a range of extremely important questions relating to Chapter V (Part I), namely, circumstances precluding wrongfulness. The fourth part was an annex containing a brief comparative review of the so far unexplored question of interference with contractual rights -- related to Chapter IV of the draft articles. The fifth part of the Special Rapporteur’s report related to certain questions of principle concerning countermeasures.

HANS KLINGENBERG (Denmark), speaking on behalf of the Nordic countries, said they attached great importance to the successful conclusion of work on State responsibility -– a monumental project that constituted the last major building block of the international legal order, alongside the law of treaties and the law of peaceful settlement of disputes. It had taken the International Law Commission 48 years to adopt in 1996, on first reading, the draft articles on State Responsibility. They hoped the second reading would be completed within the term of office of the Commission’s present members, by the year 2001.

The Nordic countries sympathized with the Special Rapporteur’s suggestion for a merger of partly overlapping provisions and the forthright deletion of articles that appeared to be outside the scope of the draft. They supported the deletion of articles 20,21 and 23 concerning obligations of “conduct”, “result” and “prevention” respectively, insofar as the distinction between those three categories of obligation did not appear to have any bearing on the consequences of their breach as developed in Part II of the draft. It should be seen as falling within the area of primary rules.

They were not convinced that a distinction between a State and States specifically injured by an internationally wrongful act, and others that had a legal interest in the performance of the relevant obligations, would serve a useful purpose given the uncertainty of the concept of “other States which have a legal interest”.

With regard to the question of compensation, the Nordic countries considered that form of reparation to be most essential. They therefore favoured more detailed provisions on that element, in particular regarding the assessment of pecuniary damages, including interest and loss of profits.

They agreed that the present linkage between the taking of countermeasures and compulsory arbitration actually encouraged the resort to such measures instead of limiting their use. De-linking the two supposed, however, that there would be strict limitations imposed on the taking of countermeasures, including the requirement of refusal by the wrongdoing State of an order to settle the matter through a binding third-party procedure as a condition for resorting to such measures.

The fact that a plurality of States was involved in the breach of an international obligation or injured by an internationally wrongful act did not appear to necessitate a particular treatment in the draft articles themselves, but might find its way into the Commentaries on the draft, he said. The Nordic countries encouraged the Special Rapporteur and the Commission to continue to make their best efforts to finalize the second reading of the draft articles during the Commission’s next two sessions.

CHUSEI YAMADA (Japan) said that inasmuch as the primary objective of codification of international law was to provide an effective legal framework for the resolution of disputes among States, the work of the Commission should be based on prevailing State practices rather than on a grand design or theoretical and abstract concepts. The draft articles had been before the world for almost 20 years now and they had had a significant influence on the writers of international law. However, the Commission should not hesitate to revise them if that was required to achieve a viable codification.

The Commission had made a drastic rationalization, resulting in a substantial improvement. The new draft was explicit and concise. Concerning draft article 19, on the “crime of State”, he said no useful purpose was to be served in categorizing international obligations, unless different legal consequences were provided for them. Japan was opposed to inclusion of the “concept of crime of State”. He appreciated the clear distinctions that had been made among, “aid or assistance”, “direction and control” and “coercion”.

He also appreciated the Commission’s efforts to take into account precedents and current State practices in defining the circumstances precluding wrongfulness. His Government supported strictly limiting those circumstances, so that a State could not abuse them and evade its responsibility. The Commission must take a clear stand that Chapter V presented the exhaustive list. A majority of the Commission’s members were opposed to the linkage of countermeasures with dispute settlement, he said.

HANS WINKLER (Austria) said the rules on State responsibility should provide firm guidelines for the conduct of States and assist them in structuring their behaviour in order to avoid internationally wrongful acts. The rules should take effect as soon as possible; a speedy completion of the project seemed overdue after so many years and more than one change in direction.

Article 29 on consent should be retained, he said. The inclusion of a provision containing a jus cogens exception to the general rule of consent, in some form, might be warranted. Concerning article 30(bis), he said that, although a precise distinction between primary and secondary rules had not yet been made, any presumed interrelationship with the secondary rules concerning countermeasures was structurally mistaken. He was not convinced that any reference to the “exceptio” outside the framework of the Vienna Convention on the Law of Treaties was warranted at all. He welcomed the proposed changes to article 31 on force majeure. He supported including a “without prejudice” clause containing references to due diligence.

Regarding proposed changes to article 33, he said that, in light of their far-reaching effects and inherent potential for abuse, those changes required further careful scrutiny. In the context of article 33, he agreed that humanitarian interventions were governed by primary rules of international law and as such were not governed by that article, which should be amended accordingly.

Concerning the “extremely thorny issue” of the definition of injured party, he said he was not satisfied with the current wording of article 40, which was not in line with new tendencies and developments in contemporary international law. New approaches to the question of who should be considered entitled to invoke State responsibility were necessary. A related issue, which had not yet been reflected in the text, was the relationship among the States entitled to invoke responsibility with regard to the same breach. He questioned whether the claim for reparation of one of those States absorbed the rights of the others.

LINCOL WEE (Singapore), speaking on nationality in relation to the succession of States, supported the Commission’s decision to recommend conclusion of work on that topic. He understood that adoption of the draft articles as a declaration would mean that they would be non-binding on States, and would signal conclusion of the Commission’s work on the topic. It was unfortunate, however, that the Commission had not extended its report to indicate how the declaration might be adopted in terms of form as well as substance. That was an area where further discussion would be necessary.

On the topic of jurisdictional immunities of States and their property, he said that suggestions on the drawing up of a model law on the topic should be seriously considered.

Singapore encouraged the Commission to continue to seek dialogue and views from States on State responsibility. He commended the Commission for its enlightened approach to deletion and simplification of certain draft articles and commentaries.

He encouraged the Commission to continue to ensure that there was a clear distinction between principles established under international law and those that were evolving or developing as principles. That approach would also ensure that the Commission’s work continued to represent the most exhaustive restatement of what the law was on the topic, and provide a balanced and objective elaboration of the principles articulated under that heading.

ALEJANDRA QUEZADA (Chile) said that with the preparation of the draft articles, the Commission had made a significant contribution to the codification and development of international law. In article 42, on reparations for damage, she was not convinced that securities and guarantees for non-repetition of wrongful acts were adequately covered. With respect to reparations, it was necessary to consider the gravity of the violation, the interests of the international community, the damage caused and other consequences to the injured State. A determination of damage should also take account of the actual economic capacity of the wrongful State. She approved of the inclusion of an explicit stipulation that in no case should reparation result in the people of a State being deprived of their means of subsistence. The article should also state that reparation included interest. Reparation should also cover moral harm.

The provision for countermeasures could lead to confusion and prevent a wide acceptance of the draft articles, she said. Nevertheless, given the advanced stage of discussions in the Commission, she supported its inclusion. Peaceful settlement of disputes required special and detailed treatment. Mandatory arbitration could in fact aggravate the dispute or raise tensions further.

MIRJAM SKRK (Slovenia), speaking on jurisdictional immunity of States and their property, agreed with the new formulation of the definition of a State proposed by the working group, particularly in relation to the Federal State and its constituent parts. She had no objection to the Commission’s new approach to the concept of a State enterprise or other entity in relation to commercial transactions. With respect to contracts of employment, she supported the Commission’s having left the primary jurisdiction for those contracts to the State of the forum. That preserved a delicate balance between the protection of rights of local employees and respect for the jurisdictional immunity of a foreign State. Slovenia welcomed the working group’s approach towards pre-judgement and post-judgement measures of constraint against property of a foreign State. But, in its view, the term “pre-judgement measures” could be replaced by the better known term, “provisional measures”. A non-discrimination clause should be added to the measures of constraint against foreign State property.

On the topic of State responsibility, she said it seemed reasonable that individual articles should be deleted or merged, if simplification and clarification of the text so required. She was not entirely satisfied with the present distinction between obligations of conduct and obligations of result.

The Commission should take account of the general principles of law and the jurisprudence of international tribunals if it was unable able to find a way to reconcile variations in the existing practice of States, she said. A State might not always be held internationally responsible for the result when the legal protection of an individual, natural or legal person, was at issue. However, a State was internationally responsible for the guarantee of due process of law on behalf of its competent organs and courts, including the right to appeal. That included the protection of an individual against abuse of rights and denial of justice.

On reservation to treaties, she said that as a recent successor State, her country was especially pleased that the definition of reservations included, inter alia, a unilateral statement made by a State when making a notification of succession to a treaty. In that manner, the sovereign equality of States in the treaty-making process was fully preserved.

MILAN DUFEK (Czech Republic), speaking on State responsibility, supported retention of provisions of the draft articles dealing with breach of international obligations. The unavoidable abstractness of some provisions could be balanced by the guidance in the Commission’s commentary. On the other hand, it would be good to delete provisions dealing with the distinction between obligations of conduct and obligations of result. That classification of obligations had no bearing on the consequences of their breach; and therefore, there was no reason to entertain those questions within the realm of responsibility.

As for the provision dealing with force majeure, he supported the Commission’s decision to delete the feature of the knowledge of wrongfulness from the article, as it was misleading and contradictory to the general elements required for establishing State responsibility.

HAMZAH THAYEB (Indonesia) said he appreciated the realistic approach that had been taken by the Special Rapporteur so that the relationships among the different articles and parts of the draft could be identified. As to article 16, on existence of a breach, the relationship between the law of State responsibility and law of treaties had been generally acknowledged. The suggestion for the draft articles to provide for a hierarchy of the different norms of international law had merit. However, he was open to other ways to resolve the issue of conflicting international obligations.

Article 30, on countermeasures, should be treated with caution, he said. As the report acknowledged, a strict limit on their application was required in light of their controversial nature and the possibility of their abuse.

Turning to the draft articles on nationality in relation to succession of States, he said the draft would establish a legal framework that assured greater juridical security for individuals as well as States. It was important that the exchange of information between States was facilitated, so that the negative ramifications of a particular succession of States could be identified with regard to the nationality of persons as well as to other issues linked to nationality.

On jurisdictional immunities of States and their property, he said that sovereign States should be immune from legal proceedings for their acts, regardless of whether they were of a private or public nature.

JAN VARSO (Slovakia) noted the progress that the Commission had made on State Responsibility during its last two sessions, due in part to the work of its Special Rapporteur. The Commission’s main task was to build a path that would lead States away from violation of international obligations and towards the reestablishment of the rule of law.

On the topic of jurisdictional immunities of States and their property, he noted that the legal terminology had been taken from domestic penal law. The indirect role of a State in the breach of its international obligations should be considered in the same way as a direct breach by a State. He feared the strategy of granting more exceptions would have a negative impact.

Turning to the question of nationality in relation to the succession of States, he said his delegation could support the draft articles proposed by the Commission. It was satisfied with the proposal to have the draft articles adopted as a declaration. It also took note of the Commission’s decision to conclude work on the topic.

SUN GUOSHUN (China) said the topic of State responsibility was a vast and complex one. For the Commission to be able to accomplish so much in terms of the recent revisions was no small feat. Speaking specifically of articles, 20, 21, and 23, dealing, respectively, with obligations of conduct, result, and prevention, he said the Commission’s report indicated that members were divided. Some felt that all three should be deleted, as such categorization did not produce legal effects and was an example of over- codification. Others held that it was useful for assessing whether a breach had occurred, when it had occurred and when it had ended.

The usefulness of such categorization to judges should not be lightly dismissed, he said. In the law of diplomatic relations, the law of the sea and environmental law, such categorization was implied, although not specifically referred to. He saw merit in that approach. Given that the terminology of obligations of conduct and result was familiar to, and used by, international jurists, great care should be taken before deciding to delete those references.

Concerning article 22, he said that the exhaustion of local remedies was a rule firmly established in both treaty law and customary law and was a means of ensuring respect for internal legislation and State sovereignty. It would be inappropriate and unfair if such a rule were to be retained as a “without prejudice” clause. The redrafting of the articles on “aid and assistance”, direction or control”, and “coercion” was a vast improvement. They had been made clearer and arranged more logically. He added that preclusion of wrongfulness must be clearly defined and narrowly restricted, particularly in article 33, on state of necessity.

VALENTIN ZELLWEGER, Observer for Switzerland, noted that article 3 of the 1996 version of the draft had set two conditions for an internationally wrongful act; attribution of the conduct to a State and breach of an international obligation. Restructuring and rewording had improved the text. The earlier work on a distinction between obligations of conduct and obligations of result had been a useful exercise. He noted that there had been a suggestion to delete all references to complex acts and retain composite acts. That proposal had implications for article 25, on moment and duration of a breach. He approved of the distinction between a completed act and a continuing act, saying it clarified the moment when a breach began and its duration.

Concerning the provision on the implication of a State in the internationally wrongful act of another State, he favoured its retention. There would be a lacuna in the law of State responsibility if it were left out. The Commission should think about adding a provision that wrongful conduct could be attributed to several States when they had acted in concert to commit an internationally wrongful act. The Commission had rightly stressed the point that another State was responsible only when it was bound by the obligation.

Referring to article 27, on assistance, and article 28 on direction or control, he said the two concepts were very different and questioned whether they should be subject to the same legal regime and have the same legal consequences. He recommended that the chapter titled “circumstances precluding wrongfulness” should be changed to “circumstances precluding responsibility”.

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