SIXTH COMMITTEE CONCLUDES CONSIDERATION OF DRAFT ON STATE RESPONSIBILITY

Press Release
GA/L/3126

SIXTH COMMITTEE CONCLUDES CONSIDERATION OF DRAFT ON STATE RESPONSIBILITY

The Sixth Committee (Legal) this morning concluded its discussion of the International Law Commission’s long-standing efforts to codify an instrument to govern State responsibility for internationally wrongful acts.

Speaking in the debate were the representatives of Mexico, Germany, New Zealand, India, Brazil, Australia, Venezuela, Israel, Bulgaria and the Russian Federation.

The representative of New Zealand said that with its latest revision of the draft articles on State responsibility, the Commission had embarked on what was potentially the last leg of its journey; it would be disappointing if impetus were lost. Among the outstanding issues she cited with respect to that text were: a distinction between criminal and delictual responsibilities; conflicting international obligations; categorization of obligations and of breaches; a regime for attribution of responsibility to States; circumstances precluding wrongfulness; and, application of countermeasures and dispute settlements.

The Indian speaker said the Commission would have to adopt a very innovative and prudent approach to the completion of its work on State Responsibility. The most important elements of such an approach included retention of the well-established principles incorporated in the draft articles, with minimum modifications in the structure of their presentation. The Commission should eliminate concepts which had not achieved consensus and were continuing to create controversy.

The representative of Mexico, noting changes made to several chapters of the 1996 version of the draft articles to make then clearer and more acceptable, cautioned that excessive clarification could weaken the articles. The article on existence of a breach of an international obligation constituted one of the pillars of the regime of state responsibility and must be included.

Israel’s representative said the definition of an injured State was one of the most controversial aspects of the draft. Referring to a list of conditions in the draft under which a state might be considered “injured”, he said that some of those conditions were not only unhelpful but problematic as well. As currently drafted, the articles

Sixth Committee - 1a - Press Release GA/L/3126 23rd Meeting (AM) 2 November 1999

provided that any one of the variety of States that could be classed as injured had the right to claim reparation in the form of restitution, compensation and satisfaction. There was, however, no basis in international law or practice for enabling States to seek reparation in cases in which they could not show themselves to have been actually harmed.

The Israeli speaker was one of several Committee members who took exception to a provision in the draft articles that stipulates that reparation in no case should deprive the population of its means of subsistence. He said it created a convenient and excessively wide loophole for a wrongdoing State to abuse. The representative of Australia said that it had long been established under international law that full reparation was required without qualification regarding the means of the State that had engaged in the wrongful act. The draft article on the subject undercut the obligation to make full reparation. He was unaware of any state practice, international rule or legal decision supporting the proposed exception.

The Sixth Committee will meet again at 3 p.m. to begin its consideration on another part of the Commission’s report, dealing with reservations to treaties.

Programme of work

The Sixth Committee (Legal) met this morning to continue its discussion on the long-standing effort of the International Law Commission to draw up an instrument to govern State responsibility for internationally wrongful acts.

The Committee is discussing updated draft articles on State responsibility, which are divided into three parts: Part I covers the origin of international responsibility; and Part II, the content, forms and degrees of international responsibility. A possible Part III would cover settlement of disputes and implementation of international responsibility.

Statements

REINHARD HILGER (Germany) said the provisional adoption by the Commission of a set of draft articles on State Responsibility had been a significant step forward. Germany agreed with the modification of article 18(requirement that the international obligation be in force for the State).

He said the provisions of Chapter IV of the draft articles on responsibility of a State in respect to the act of another State should not preclude the responsibility of a State that assisted, directed and controlled or coerced another State or of a third State. Further changes to Chapter V, on judicial decisions, should be considered. Germany was not convinced that a provision on consent (article 29) should be deleted even after hearing the argument that consent of another State did not preclude wrongfulness.

His Government was interested in other issues raised by the Special Rapporteur concerning the preclusion of wrongfulness. It would welcome a provision that recognized the predominance of peremptory norms, and favoured further discussion of the question. A second paragraph in the article concerning self- defence, as proposed by the Special Rapporteur, and a distinction among obligations that constrained States even in self-defence, especially in the field of international humanitarian law, would be useful. He noted that the issue was also dealt with by the International Court of Justice in its Advisory Opinion on the Threat or Use of Nuclear Weapons. An explicit paragraph seemed preferable to a mere elaboration in the commentary, he added.

Germany agreed with the deletion of the subjective requirement of knowledge of wrongfulness in the redraft of article 31 on force majeure and fortuitous event.

BERNARDO SEPULVEDA (Mexico), noting that substantial changes had been made to several chapters of the 1996 version of the draft articles, said some were necessary to make the draft clearer and more acceptable. A balance must be struck, however, to avoid excessive clarification, which could weaken the articles. Article 16 on existence of a breach of an international obligation, constituted one of the pillars of the regime of state responsibility. Its inclusion was essential. The origin of responsibility could be customary, conventional, or from an other source, as the source was not relevant to the effects of the responsibility. The draft should mention origin only if it had a bearing on the specific consequences of that responsibility.

The Commission should explore in greater detail the relationship between illegality and responsibility. Concerning article 18, on an international obligation needing to be in force, he said that the principle of temporality could be applied equally to all international obligations, and no exceptions should exist. Referring to article 20, he said there was merit in maintaining the distinction between conduct and result. However, he added, its suppression would not substantially affect the norms of State responsibility. Article 26 b is on exhaustion of local remedies, was a useful contribution to the draft article. It was more than a procedural provision; it was substantive. Furthermore, that provision might obviate the existence of an internationally wrongful act by giving the State the chance to put things right.

The proposal to eliminate article 29, on consent, was risky, he continued. Its omission would neither simplify nor clarify the draft. He also favoured the retention of article 33, on a state of necessity.

He said Mexico was convinced that under international law, the obligation existed for state activities not to cause transboundary harm. Compensation should be made for the harm caused. There was a need for a much more comprehensive regime of responsibility than that which currently existed in international law. Concerning the possibility of including the environment on the Commission’s agenda, he said environmental law was particularly difficult and was already being examined in various forums; therefore, his Government had doubts about the Commission taking up those issues.

VICTORIA HALLUM (New Zealand) said it was essential to maintain the momentum that had resulted in a set of draft articles of broad application and appeal. The Commission had embarked on what was potentially the last leg of its journey; it would be disappointing if impetus were lost. She said that difficult issue remained to be resolved, however, such as the eventual form of the draft articles. Other outstanding issues included: a distinction between criminal and delictual responsibilities; conflicting international obligations; categorization of obligations and of breaches; a regime for attribution of responsibility to States; circumstances precluding wrongfulness; and, application of countermeasures and dispute settlements.

The relationship among various chapters of the draft articles had yet to be satisfactorily articulated, she said. The distinction between obligations of result, conduct and prevention required further examination. She supported any pragmatic approach to deciding whether the distinction should be retained. She agreed that articles 24 and 25 on completed and continuing wrongful acts, should be simplified but said the distinction itself should be preserved. She added that article 34 b is, suggesting a procedure for invoking a circumstance precluding wrongfulness, could be a logical and useful addition to the draft articles.

P.S.RAO (India) said the Commission would have to adopt a very innovative and prudent approach to the completion of its work on State Responsibility. The most important elements of such an approach included retention of the well-established principles incorporated in the draft articles, with minimum modifications in the structure of their presentation. The Commission should eliminate concepts which had not achieved consensus and were continuing to create controversy. It should also ensure a clear relationship among the different parts of the draft articles. A flexible approach to the form of the articles should be adopted.

He said the law of State Responsibility could neither have a greater clarity than the primary rule that it sought to serve, nor could its implementation be more rigorous and effective than what the primary obligation itself prescribed.

India awaited the issuance of a set of draft articles in Part I, with appropriate commentaries, next year. The Commission should simplify their content and presentation. Concepts such as “international crimes” could be dealt with separately, without letting the present project be hampered by controversies over them.

JOAO CLEMENTE BAENA (Brazil), speaking on jurisdictional immunities of States and their property, said there was a need to reformulate provisions of the draft articles dealing with the nature of the immunities. There was a need for greater clarity, to ensure that immunity was not extended to trading activities. Further consideration of the provisions on employment contracts was also required.

In Brazil, the supreme federal court had considered that the customary law of immunity was no longer defensible. There was a need for an international convention on the question. The controversial matters involved should be negotiated in a working group.

He commended the International Law Commission and its Special Rapporteur on their work on State Responsibility. He said further work on the draft articles should be focused on achieving greater clarity while taking account of developments around the world. He welcomed the points raised by India regarding the approaches the Commission should take to complete its task in the next two years.

DAVID BLUMENTHAL (Australia) expressed concern about the definition of an injured State. The draft appeared to allow any State that was party to some multilateral treaties, in circumstances where there had been a breach by another State, to seek full reparation from the wrongdoing State, even in the absence of tangible damage to its interests. He recommended appropriate clarifications to article 40 as to the meaning of an injured State. On article 42, on reparation, he said that it long been established under international law that full reparation was required without qualification regarding the means of the State that had engaged in the wrongful act. Paragraph 3 of the article undercut the obligation to make full reparation in cases where that reparation resulted “in depriving the population of a State of its own means of subsistence”. He was unaware of any state practice, international rule or legal decision supporting such an exception, which could be subject to abuse by States seeking to avoid their legal obligation. He therefore could not accept the exception.

Interest should be included under an award for compensation, he went on. Otherwise, there would be an incentive for the wrongdoing State to delay payment, resulting in a devaluation of the actual award of damages. He suggested the replacement of the word “may” include damages with “shall” include. It would be useful to define the expression “moral damage” in article 45, on satisfaction. The right to punitive damages was not a practice recognized in all jurisdictions and the acceptability of such a reference required further thought.

He said the reference to disciplinary action against officials when the internationally wrongful act had arisen from their conduct was a domestic concern that should not be covered by the draft. Meanwhile, the section on countermeasures constituted a very valuable summary of state practice in that area and struck a fair balance and appropriate balance between the interests of the injured state and the wrongdoing state. It might be useful, however, to reconsider the relationship between countermeasures and resort to third-party dispute settlement procedures. Such resort should not necessarily preclude countermeasures.

Dr. NELSON GONZALEZ (Venezuela), speaking first on jurisdictional immunities of States and their property, expressed confidence that the work of the Commission, which was advancing rapidly, would result in the elaboration of a convention that would be acceptable to all. That Convention would be extraordinarily useful to the efforts to codify and progressively develop international law. Noting that radical changes had been made to the draft articles on state responsibility, he said the Commission's efforts should help to improve and rationalize the text but not diminish its impact nor its scope. The debate on articles 20 and 21 reflected the importance of a distinction between obligations of conduct and of result. The distinction was not only related to primary rules but was also relevant to the establishment of norms of secondary rules on international State responsibility.

The reference to “assistance” in article 27 on aid or assistance by one State to another State for the commission of a wrongful act was appropriate, he continued. Referring to article 28, which established state responsibility for the coercion of another State, he agreed that coercion was nothing less than conduct that gave the coerced state no other option but to comply with the wishes of the coercing State. The circumstances precluding responsibility should be very restrictive and provide many exceptions.

Article 40 on the definition of an injured State, was fundamental to the draft, he said. A definition did not necessarily have to refer to the harm caused. The harm might not necessarily be immediate; it could cause an eventual damage. Paragraph 3 of article 40, referring to an injured state and international crime, should be maintained. Likewise, a distinction between delicts and crimes, or exceptionally grave delicts, should also be maintained.

EHUD KEINAN (Israel) said the definition of an injured State was one of the most controversial aspects of Part II of the draft articles. He expressed concern at the case law on the meaning of that term under article 40, saying that some of the cases included in the list were not only unhelpful but problematic as well. One reference seemed to usurp the role of the Vienna Convention on the Law of Treaties. Furthermore, in some provisions, the confusion between the injured State and the interested State was likely to lead to absurd results. As drafted, the articles provided that any one of the multitude of States classed as injured had the right to claim reparation in the form of restitution, compensation and satisfaction. There was, however, no basis in international law or practice for enabling States to seek reparation in case in which they could not show themselves to have been actually harmed. It seemed that in the cases of interested states, as opposed to injured ones, the consequences of grave violations would be limited to the right to call for cessation of the unlawful conduct. Reparation would be made to the injured state. The approach of that draft article clearly needed rethinking.

The provision in article 42, stating that in no case should reparation deprive the population of its means of subsistence, created a convenient and excessively wide loophole for a wrongdoing State to abuse, he said. On the issue of compensation, he said that interest, together with reimbursement for loss of profits, should not be optional, but rather obligatory, in accordance with the principle of full reparation. He said the issue of countermeasures was arguably the most complex area of the field of State responsibility, reflecting as it did the imperfections of the international legal regime. The draft was required to walk a fine line -- acknowledging that, in practice, the risk of countermeasures might be the only effective deterrent to the commission of wrongful acts on the one hand while retraining from encouraging the use of such measures on the other. In seeking to find that balance, the draft should seek as far as possible to reflect the existing, albeit complex, rules of customary international law relating to countermeasures and not attempt to recast or improve them. He objected to the imbalance inherent in permitting only the wrongdoing State to take a case to arbitration while the injured State had no corresponding right.

TANIA TODOROVA (Bulgaria), speaking on State responsibility, said the codification of rules on the topic was fundamentally important to her country. The Commission should continue its work on the subject. She said the approach taken by the Commission and its Special Rapporteur in updating draft articles should be supported.

She urged the Commission to define properly the origin of wrongful acts inflicted on States as outlined in draft article 40, concerning the meaning of injured State. Bulgaria also supported the avoidance of a link between the provisions dealing with arbitration (article 50, paragraph 2) and those on countermeasures in chapter III of the draft articles.

She commended the Commission and its Special Rapporteur on completing work on the draft articles on nationality. She had no objection to the text being adopted as a declaration by the General Assembly.

ILYA ROGACHEV (Russian Federation) said the problem of primary and secondary norms should not hamper the work of the Commission, as a number of international procedural rules were being created now. The issue was therefore losing importance.

It was important that the provisions concerning the involvement of a State in unlawful acts be clarified. He did not agree with the argument that articles of the chapter relating to international crimes would be rarely applicable in practice. It would be necessary to regulate the exchanges between States for such regulation to be applied to a legal order. An in-depth study would be necessary.

On the question of responsibility of States acting collectively, he said it was not important whether they did so through international organizations or through individual juridical entities. He concurred with the Commission’s observation that experience had shown that States often committed a wrongful act jointly, with each bearing equal responsibility. He said the Commission should address the issue, and not defer it until it began work on drafting articles on responsibilities of international organizations.