LEGAL COMMITTEE ENDS DEBATE ON LAW COMMISSION PROPOSALS FOR RULES TO GOVERN RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTIONS

Press Release
GA/L/3158

LEGAL COMMITTEE ENDS DEBATE ON LAW COMMISSION PROPOSALS FOR RULES TO GOVERN RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTIONS

Discussion Turns to Diplomatic Protection, Unilateral Acts of States

The Sixth Committee (Legal) this afternoon concluded its discussion of the long-standing efforts of the International Law Commission to elaborate rules to govern the responsibility of States for internationally wrongful acts.

During the four-day debate, based on the Commission's report, Committee members stressed the need for, among others, a clear definition of the breaches of State responsibility and restrictive definition of the injured State affected by a wrongful act of another State. Some urged specific rules on how responsibility could be invoked, as well as strong safeguards against unlawful use of countermeasures and the clear enumeration of the limits of such measures.

In this afternoon's discussion, the representative of the United States said that under international law there was no duty to negotiate before a State resorted to using countermeasures, though a provision of the draft articles would require such negotiation. A blanket constraint could be exploited by the responsible State to the further detriment of the injured State. At the minimum, he said, the draft articles should clarify that provisional and urgent countermeasures required to protect a State's rights need not be suspended.

Other speakers on the subject were the representatives of Algeria, Jordan, Slovenia, Cyprus, Indonesia, Poland, Russian Federation, Kuwait, Cuba and Brazil. The Observer for Switzerland also spoke.

The International Law Commission has called for comments from governments on the 59-article draft text on State responsibility that might assist it in its finalization of the text at its next session in 2001. The Commission's work on State responsibility began in 1955 and its provisional adoption of the draft articles on first reading took place over a period of more than two decades - 1973 to 1996.

Also this afternoon, the Sixth Committee began discussion of two topics that were also dealt with by the Commission at its last session -- diplomatic protection and unilateral acts of States. Chusei Yamada, Chairman of the International Law Commission, introduced the Commission's report on the two subjects. The representative of France made comments.

The Sixth Committee will meet again on Monday, 30 October, at 10 a.m. to continue its discussion on diplomatic protection and unilateral acts of States.

Committee Work Programme

The Sixth Committee (Legal) met this afternoon to conclude its discussion of the draft articles on State responsibility being elaborated by the International Law Commission, and to take up two new topics -- diplomatic protection and unilateral acts of States -- on which the Commission is also drawing up rules. Debate on the 59-article draft text on State responsibility began on Monday, 23 October.

At its fifty-second session this year, the Commission considered the topic "diplomatic protection". It examined the first report of its Special Rapporteur, dealing with issues of definition and scope of the subject, the nature and conditions under which diplomatic protection might be exercised, in particular, the requirement of nationality and the modalities for the protection covered in articles 1 to 8 of the draft texts on the topic. The Commission referred articles 1, 3 and 6 to open-ended informal consultations chaired by the Special Rapporteur. Taking into account the report of the informal consultations, the Commission referred articles 1,3 and 5 to 8 to the drafting committee.

The Commission at its forty-eighth session in 1996 identified the topic of "diplomatic protection" as one of three questions appropriate for codification and progressive development.

According to a report on its fifty-second session, the Commission examined the third report of the Special Rapporteur, in which he proposed changes on the draft text on unilateral acts of States. He submitted new provisions on definition of unilateral acts (article 1), the deletion of the previous article 1 on the scope of the draft articles, a new draft article 2 on the capacity of States to formulate unilateral acts, and a new draft article 3 on persons authorized to formulate acts on behalf of the State.

There is also a new draft article 4 on subsequent confirmation of an act formulated by a person not authorized for that purpose. According to the report, the Special Rapporteur proposed the deletion of previous draft article 6 on expression of consent and a new draft article 5 on the invalidity of unilateral acts.

Statements

ABDALLAH BAALI (Algeria) said the project on State responsibility was of great importance to harmonious international relations and modern aspects of international law. The codification of State responsibility would serve as an alternative to the use of force and represent the best guarantee for the maintenance of international peace and security. He said that, due to a lack of time for in-depth consideration, his comments on countermeasures and dispute settlement would be of a preliminary nature.

He said the issue of countermeasures was at the heart of the text. It was a delicate and controversial subject. Algeria had been resistant to its inclusion in the text. Countermeasures were a practice available to powerful States. One could question whether their codification would grant a legitimacy to coercive actions by powerful States against weak States. The defect in the inequality between States would be legally enshrined in a practice that was challenged.

He said he therefore welcomed the terms of article 51 listing certain prohibitive countermeasures, such as the obligations not to use force and to protect fundamental human rights, and to exclude the use of countermeasures as a form of reprisals, as well as the obligation to respect diplomatic officials, premises, archives and documents. To those, he said the obligation to respect the independence, sovereignty and territorial integrity of a State should be added. Countermeasures must always remain proportional to the damage suffered and never go beyond that.

MAHMOUD D.HMOUD (Jordan) said the draft text was a major improvement on the one adopted on first reading in 1996. It was better structured, simpler and more consistent, and generally avoided dealing with controversial issues that were not necessarily the subject matter of the draft articles on State responsibility. It concentrated, on the other hand, on dealing with the consequences of the internationally wrongful act -- a matter proven to be problematic and confused in the first reading of the draft articles.

He said Jordan welcomed the deletion of the previous article 19, which distinguished between civil and criminal liability of States in international law and contributed to the controversy on the notion of international crimes. The new part II bis was a successful effort to distinguish between rights of injured States and the rights of non-injured but legally interested States. However, the threshold which qualified a State to invoke responsibility as an injured State, by reason of a breach of an integral obligation or an obligation owed to the international community, was not sufficiently defined.

While the draft articles had underlined the concept of obligation erga omnes and provided for their enforcement through the invocation of State responsibility and the regime of countermeasures, those obligations remained ill-defined in international law. He believed it was time to try to codify the legal regime on countermeasures. The exercise was necessary to safeguard the sovereignty of weak States against political countermeasures that were neither defined nor impartial.

He suggested that in a second reading the Commission take into consideration such issues as the effect of excessive countermeasures and the new concept of collective measures.

ANDREJ GRASSELLI (Slovenia) said the deletion of the provisions on dispute settlement were on the presumption that the draft articles would not be adopted as a convention. However, if the text were to be in the form of a convention, the introduction of a dispute-settlement mechanism would be necessary. Also, since countermeasures could not be taken in case of a dispute submitted in good faith to a court or tribunal, the regulation of dispute settlement in the text was advisable.

He agreed with the concept of full reparation and the strengthening of the concept of injury for any damage, whether material or moral. However, as tribunals were cautious in approaching cases of non-material loss, a general clause lacking a concise definition would not contribute to clarification. Concerning article 31, he said a State committing a violation could not have the same degree of responsibility for a wrongful act that was intentional as for one that resulted from pure negligence. That should be respected in the article.

He supported the inclusion of a general provision introducing erga omnes obligation in article 34. Obligations to the international community as a whole were those having their origin in the breach of peremptory norms of international law. While it was necessary to include the issue of countermeasures in codification of the rules of State responsibility, there was an inherent danger that a general regulation would serve as an excuse for abuse.

ANDREAS JACOVIDES (Cyprus) said the Commission must ensure that the expectations of the international community, and in particular, of the new States that had come into being after the classic rules on responsibility had been formulated, were not disappointed. Care should be taken not to allow the pendulum to swing back too far to the traditional conventional approach at the expense of progressive notions, imported into the law largely as a result of the impact of the newly independent States. As to the form the draft articles should take, he preferred a legally-binding convention. The subject was too important, and too much time and effort had gone into it, to treat it in a lesser fashion, such as a model law or declaration.

He also attached special importance to the establishment of a dispute- settlement mechanism, which was essential to a well-functioning legal regime of State responsibility. If countermeasures were to be retained, their scope should be restricted and narrowly defined, since they lent themselves to abuse at the expense of the weaker nations. He also saw a need for a distinction between States specifically injured by a wrongful act and other States which had a legal interest. It was the specifically injured State that had the right to reparations.

DONNILO ANWAR (Indonesia) said the rules governing countermeasures were not sufficiently developed should the injured State and the allegedly responsible State dispute the nature of the act. Recourse could be through the mechanism of peaceful settlement, rather than a unilateral act of countermeasures.

On diplomatic protection, he said raising the question of human rights would complicate matters. The International Law Commission should confine itself to the strict technical concept of the diplomatic protection, as there were already laws governing the protection of nationals between various States.

On the reservation of treaties, also dealt with by the Commission, he said the Vienna Conventions on the subject had been implemented in a fair manner, thereby facilitating the accession of States to multilateral treaties. His delegation welcomed the Commission's proposal to prepare guidelines, rather than a formal legal instrument on the topic.

He also commended the Commission for its seminars which had benefited participants from developing countries.

WLADYSLAW CZAPLINSKI (Poland) said that, although he was aware of the difficulties, he would welcome the adoption of the draft articles as a convention. However, Poland was ready to accept other possible forms. He believed article 31 should be amended -- perhaps by way of reference to other provisions of the draft dealing with the presenting of international claims by directly and/or indirectly injured States -- in order to limit the possibility of bringing financial claims in cases of moral injuries. Article 32 on the irrelevance of internal law was of great importance. He understood that provision as precluding the possibility of relying on domestic provisions in order to avoid international responsibility.

Poland accepted the inclusion of the provisions on serious breaches of essential obligations owed to the international community as a whole, he said. However, it was unclear whether reparation claims in case of obligations erga omnes could be presented by every State or by all States acting together, or by the international community as a whole.

While he agreed that it would be difficult to achieve a general consensus on the point, the International Law Commission should clarify the issue in its commentary. He welcomed the inclusion of provisions on countermeasures. Poland was ready to accept draft provisions referring to the position of individuals under the law of State responsibility, but the meaning of article 34 was unclear as to the relationship between that law and claims based on private law presented by the municipal law of the perpetrator. He welcomed article 58 dealing with the possible criminal responsibility of individuals and expressed the hope that its implementation would be soon possible through the activities of the International Criminal Court.

CLYA ROGACHEV (Russian Federation) said draft articles on countermeasures needed to be concise, as they could be abused by powerful States. An additional study of the provisions was required, and his delegation would submit a commentary.

He said a clear definition was required for article 34, noting that there was a growing trend towards interdependence. He said the definition given to article 41 was too broad. That article covered international responsibility arising from internationally wrongful acts that constituted a serious breach by a State of an obligation owed to the international community as a whole, and essential for the protection of its fundamental interests. He said the provision could give rise to abuse. The title should be responsibility for international breaches. He felt the obligation to cooperate should be extended to cover the State committing the wrongful act.

On article 56, "les specialis" -- contained in the general provisions of the draft articles -- he said it would be more appropriate to use the term "special regime". He said the concept of "special regime" was recognized internationally.

The form the draft articles could eventually take should evolve in stages.

ABDULAZIZ AL-MELHEM (Kuwait) said the report of the International Law Commission showed the progress it had made in the elaboration of draft articles on "thorny" issues of concern to his delegation. Kuwait was committed to international legal instruments. The issue of State responsibility for internationally wrongful acts was vital in compliance with the United Nations Charter. That was why the issue of countermeasures was important to force a State committing wrongful acts to pay compensation.

His delegation endorsed proposals made by several delegations for the establishment of precise definition in order not to provide loopholes for States committing wrongful acts. It was necessary to prompt States to cease those acts. In case of contradictory obligations, he said the provisions of the 1969 Vienna Convention on the Law of Treaties should be followed. It provided guidelines for responsibility. He said the draft articles should be finalized in treaty form, and should be approved by the United Nations.

He urged States to cooperate with the Commission in reaching consensus on the text to put an end to the irresponsible action of States and to ensure observance of the United Nations Charter.

ALVAREZ NUNEZ (Cuba) said it was important to recognize that work carried out over the years on State responsibility had provided a legacy for international jurisprudence. Cuba recognized the political implication of defining State crimes. It was important that responsibility of States be clearly established. Cuba was concerned about the inclusion in article 41 of clauses creating new and higher categories of great breaches of obligations.

The section on countermeasures was among the most controversial aspects of the draft articles. In most cases, it could be used as cover for various unilateral actions. It was, therefore, important to have clear definitions and clear limits with regard to countermeasures. Reprisal as a result of wrongful acts of a State could aggravate tension between States. Countries could also be exposed to serious risks under the article, which allowed a State not directly affected by an act to take countermeasures. That provision entailed more risks than benefits. Formulations of that nature should be set aside. The provisions on countermeasures needed to be more carefully formulated.

On the final form that the draft articles would take, she said, much arduous work remained to be done to make the draft articles to reflect balance. Serious thought should be given to the most appropriate way to adopt the final work of the draft. It was too early to be definitive on that.

MARCEL BIATO (Brazil) said the draft articles on the regime governing countermeasures incorporated many novel aspects that had arisen over the years of preparing the text. Article 51 was especially welcome, as it set out the fundamental obligations not subject to countermeasures, including prohibition of the use of force and the protection of human rights. That was highly laudable, as it helped deter abuses. Equally, the conditions for recourse to countermeasures emphasized the principle of proportionality and the seriousness of the lawful act in question.

The criteria for determining the admissibility of countermeasures, as well as their severity, needed to be detailed further; likewise, the right of third States not directly injured. This was especially the case in relation to the rights of the third State to take countermeasures on behalf of the injured State, as well as the notion of breaches of obligations "erga omnes", given the difficulty of defining "collective interests" and its impact on treaty relations. In addition, he said, the implications of awarding damages reflecting the "gravity of the breach" posed difficulties. It was important that those measures be adopted in conformity with the charter of the United Nations.

Brazil had noted the suggestion that, in the final form, the draft articles should be retained in the form of a multilateral declaration, but still a declaration would be of little value, since it would not be a legally-binding document. The central role of the International Law Commission was more than the immediate codification of existing international norms. The Commission should strive to contribute to the progressive development of international law.

JAMES THESSIN (United States) said that, despite the improvements made by the International Law Commission, certain provisions of the draft articles continued to deviate from customary international law. The United States welcomed the recognition that countermeasures played an important role in the State responsibility regime, but it believed the draft articles suggested restrictions on the use of countermeasures that did not reflect customary international law. In particular, under international law, there was no duty to negotiate before a State might resort to countermeasures, though article 53 (2) of the draft articles would require such negotiation. Article 53 (5) appeared to require that all countermeasures be suspended, once the breaching conduct had ceased and a dispute was submitted to a court or tribunal. Such a blanket constraint could be exploited by the perpetrator State to the further detriment of the injured State. At the minimum, the draft articles should clarify that provisional and urgent countermeasures required to protect a State's rights were not covered by article 53 (5) and need not be suspended.

He said the United States was pleased that the concept of "international crimes" had been removed from the draft articles. However, it felt that the broad language used to define what constituted a "serious beach" in the suggested provisions dealing with serious breaches of essential obligations to the international community, was vague and risked being over-inclusive. Almost any breach of international obligation could be described by an injured State as meeting the criteria for "serious beach". Moreover, it was not clear how the international community benefited from suggesting two categories of breaches -- serious and others -- nor why certain remedies should be available to one and not to the other.

The United States was pleased, he continued, at the distinction between States that were specifically injured by the acts of wrongdoing States, and other States that did not directly sustain injury, he went on. Both injured States and other States could demand cessation of wrongful conduct, but only injured States could seek reparation on their own behalf. The Commission should consider whether the definition of the injured State could be narrowed even further.

It would not be useful or productive to seek to finalize the Commission's work in the form of a convention, he added. His country also objected to the view that diplomatic protection was the right of the individual. Under customary international law, diplomatic protection was clearly a discretionary right of the State. The progressive development of that law should take place only in areas that customary international law failed to address adequately. The nature of diplomatic protection was not such an area.

VALENTIN ZELLWEGER, Observer for Switzerland, referred to the issue of reparation and said it was possible that a minor violation of international right could, due to exceptional circumstances, lead to considerable damages, which the responsible State had not anticipated. It could be more judicious in certain situations to envisage a situation of limited responsibility in cases of absence of intent, or in cases where the situation was outside the control of the State in question.

On the provisions on countermeasures, he said his delegation agreed with the general approach of the International Law Commission. It would be better to regulate countermeasures so as to limit their use, rather than leave that question unaddressed in the draft articles. Under those draft articles, countermeasures must serve relatively precise objectives. While not opposing the inclusion of the provisions on countermeasures, Switzerland felt that they should be placed in a separate section. The section on countermeasures was currently in a part of the draft articles dealing with the responsibility of States. That placement could create the impression that the countermeasures derived from the responsibility of a State.

CHUSEI YAMADA, Chairman of the International Law Commission, introduced part two of the Commission's report covering Diplomatic protection and Unilateral Acts of States.

On "diplomatic protection", he said the Special Rapporteur (John Dugard) who dealt with it attempted to address the core issues underlying the topic, and in particular those that had led to some controversy and conflicting views in an attempt to clarify the basic policy issues of approach and possible content of the topic. The Special Rapporteur introduced nine articles, the first eight of which the Commission considered. (Because of lack of time, it decided to consider the other at its next session.)

The Rapporteur took the view that, despite the emergence of various dispute settlement mechanisms to which individuals had been given access, diplomatic protection remained an important tool for the protection of individuals in the international arena. He also viewed diplomatic protection as a possible means for advancing the protection of human rights. Mr. Yamada said the Special Rapporteur further developed that approach in the articles that he had proposed. Commission members had debated the report of the Special Rapporteur extensively, the Chairman said. He then went on to examine the proposed articles in detail.

He said the Commission would welcome the views any delegations might have on the articles proposed.

Turning to "unilateral acts of States", he said the Commission had before it the third report of the Special Rapporteur (Victor Rodriguez Cede¤o) and a report of the Secretary-General containing replies received to the questionnaire on the topic sent to governments the previous year.

The Chairman said the Special Rapporteur examined some preliminary issues such as the relevance of the topic, the relationship between the draft articles on unilateral acts and the 1969 Vienna Convention on the Law of Treaties and the question of estoppel and unilateral acts. Members of the Commission stressed the importance of a good survey of State practice in any attempt to codify the topic and encouraged the Special Rapporteur to reflect such practice extensively in his reports.

As a result of the debate on the Special Rapporteur's report, the Chairman said, the Commission decided to reconvene the Working Group on unilateral acts of States, which made recommendations concerning further work on the topic. It did not have time to consider the Working Group's report. The Commission agreed with the report that the views of governments should be sought on specific issues identified in the Commission's report.

The Commission also agreed, he said, that the Secretariat should proceed along the lines suggested in the report regarding State practice, with a renewal of the call to governments to reply to the questionnaire and to send materials on unilateral acts. He urged delegations to encourage their respective governments to do so.

RONNY ABRAHAM (France) said paragraph 1 of article 1 of the draft text on diplomatic protection in the field of implementation of the protection seemed incomplete. The exhaustion of domestic means of recourse to diplomatic protection was just as important as the first condition relating to damage caused by an internationally illicit deed imputable to a State. The second condition should be further studied in the light of evolving international law under the possibilities now open to individuals who had been wronged.

His delegation had serious difficulties with article 4. A national of another State in a foreign country had no right to claim diplomatic protection. The foreign State was under no obligation to provide that protection. The draft text of article 8 on refugees fell within elaboration of international law. The holding of travel documents did not enable a refugee to obtain diplomatic protection.

He said it would be advisable for the Special Rapporteur to study the practice of States in the field of diplomatic protection . He thought the Commission's work in general on diplomatic protection should be limited to codification of such practice.

On unilateral acts of States, he said it seemed impossible to attempt elaboration of rules of international law applicable to the topic, unless a definition of those acts was arrived at. The definition given in the draft text seemed better than the one provided last year. The clear intention of States to formulate definition of those acts was showed by the opinion of the International Court of Justice on the issue of nuclear testing. It was just as basic for describing the act as it was for producing its judicial consequences. He said the Working Group should continue on the question of validity or otherwise of unilateral acts.

On the Commission's long-term programme of work, he said some of the projects suggested, such as the risk of the fragmentation of international law and the law relating to the expulsion of aliens, should be part of an academic study. The proposed study of the responsibility of international organizations was interesting.

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