LEGAL COMMITTEE IS TOLD LAW COMMISSION HAS FINALIZED DRAFT ON STATE RESPONSIBILITY FOR INTERNATIONAL LAWBREAKING

Fifty-sixth General Assembly

Sixth Committee

11^th Meeting (AM)

LEGAL COMMITTEE IS TOLD LAW COMMISSION HAS FINALIZED DRAFT

ON STATE RESPONSIBILITY FOR INTERNATIONAL LAWBREAKING

Assembly Support Sought for 40-Year Effort Said to Represent

Vital Step Towards Global Society Where Rule of Law Is Paramount

The International Law Commission has, after more than four decades, finalized draft articles on State responsibility for internationally wrongful acts and recommended that it be adopted as a convention in the future, with the General Assembly first taking note of it, the Assembly’s Sixth Committee (Legal) was told this morning.

The Chairman of the International Law Commission, Peter Kabatsi, said the Commission had recommended that the General Assembly must take note of the draft articles in a draft resolution to which it would be annexed.  At a later stage, the Assembly should consider convening an international conference of plenipotentiaries to examine the draft articles and to conclude a convention on it.

Introducing the Commission’s report on its 2001 session, Mr. Kabatsi said the Commission intended that the draft articles should have general application to the entire field of international law.  The articles developed a clear system for regulating the obligations of States in their interactions with other States and, as such, represented an important step towards a global society where respect for the rule of law was paramount, he declared.  He also said the commission this year completed the draft articles on prevention of transboundary harm from hazardous activities –- a portion of the international liability topic.

The Chairman of the Sixth Committee, Pierre Lelong, said the year had been an exceptionally productive and creative one for the Commission.  The draft articles on State responsibility would constitute a milestone in the commission’s work and also in modern international law.  Noting that the completion of work on the draft articles was an historic event, he said the topic had been on the commission’s agenda for almost fifty years and was in the forefront of theoretical discussions and commentaries on the part of academics and practitioners of international law.

The representative of Morocco said the Sixth Committee should serve as a filter in passing on the Commission’s recommendations to the Assembly.  The draft articles deserved close study in a limited and smaller group.  A procedure to consider the text should perhaps be adopted, whether in the form of an ad hoc committee or an open-ended working group.  It was not enough to hold a general debate and annex the articles to a resolution.

After their finalization, the articles would become the most authoritative statement available on questions of State responsibility, the representative of Finland said on behalf of the Nordic countries.  There were no conventions or customary practices that would override them, no General Assembly resolutions or general principles of law that would be situated at a higher level of “normativity” than those articles.

Given the careful balance and construction of the text, the draft articles as adopted by the Commission would hopefully be acceptable to States, the representative of New Zealand said.  The articles represented both codification and progressive development of international law.

Speaking on the draft articles on prevention of transboundary harm from hazardous activities, the representative of Pakistan said the concept needed to be clarified.  The obligation of States to take appropriate measures to prevent such actions needed to be elaborated.  He suggested a working group for that purpose.

Also speaking this morning were the representative of the United Kingdom, Belgium, China and France.

The Sixth Committee will meet again at 10 a.m. on Wednesday, 31 October, to continue its examination of the report of the International Law Commission.

Background

The Sixth Committee (Legal) met this morning to begin a two-week debate of the report of the International Law Commission (document A/56/10 and Corr.1) on the work of its fifty-third session.  The session was held this year in two parts in Geneva, from 23 April to 1 June and from 2 July to 10 August.

According to the 536-page report, the highlights of the session included the adoption by the Commission -- after a second reading -- of draft articles on Responsibility of States for internationally wrongful acts.  The Commission, which first began work on the topic in the early 1950s, recommended that the General Assembly take note of the articles in a draft resolution.  It asked that the draft articles be annexed to the draft resolution.

The Commission further recommended that the Assembly consider, at a later stage and in light of the importance of the topic, the possibility of convening an international conference of plenipotentiaries that would examine the draft articles and adopt a convention on it.

Another highlight of the session was the adoption of draft articles on prevention of transboundary harm from hazardous activities.  The Commission recommended that it should form the basis of a convention to be elaborated by the General Assembly.  This followed its second reading of the topic “International Liability for injurious consequences arising out of acts not prohibited by International Law”.

The Commission adopted 12 guidelines on the topic “Reservation to treaties”, dealing with the formulation of reservations and interpretative declarations.  It also referred 13 draft guidelines dealing with form and notification of those issues to a drafting committee.

On the topic “Diplomatic Protection”, the Commission referred draft articles 9, 10 and 11 (dealing with the questions of continuous nationality and transferability of claims and the exhaustion of local remedies) to the drafting committee.  It also established open-ended “informal consultations” to consider those questions.

The Commission decided to ask States for additional information on their practice on unilateral acts.  It also encouraged Governments to reply to a questionnaire prepared by the Special Rapporteur relating to Unilateral Acts of States.

Furthermore, the Commission asked for comments from Governments on specific issues such as the practice they followed in the formulation and the effects of conditional interpretative declarations in questions relating to Reservations to treaties.  Comments were also sought on “Late formulation of a reservation”.

On the topic of “Diplomatic protection”, the Commission would welcome comments on exceptions that might be made to the continuous nationality rule, including the conditions under which such exceptions would apply.  It would particularly appreciate comments on exceptions to the rule concerning situations of involuntary change of nationality arising out of State succession or out of marriage or adoption.

According to its report, the Commission’s next session will be held at the United Nations Office in Geneva in two parts, from 6 May to 7 June and from 8 July to 9 August, 2002.

The Commission was established by the General Assembly at its second session, in 1947, to give effect to Article 13 1 (a) of the Charter, namely to promote international cooperation in the political field and encourage the progressive development of international law and its codification.

The term of office of the present 34 members of the International Commission will expire at the end of this year, and their election for a five-year term beginning 1 January 2002 will take place during the current session of the General Assembly.

The Commission’s Statute provides in article 2 that the Commission shall consist of 34 members of recognized competence in international law and that no two members shall be nationals of the same State.  In case of dual nationality a candidate shall be deemed to be a national of the State in which he ordinarily exercises civil and political rights.

Statements

The Chairman of the Sixth Committee, PIERRE LELONG (Haiti), said this was the last year of the commission’s quinquennium.  It had been an exceptionally productive and creative year that also marked a historic event, namely the completion of the draft articles on State responsibility.  He said the topic had been on the commission’s agenda for almost fifty years and was in the forefront of theoretical discussions and commentaries on the part of academics and practitioners of international law. 

It was an impressive achievement, he said.  The draft articles would constitute a milestone in the commission’s work and also in modern international law.  The commission had also this year completed the draft articles on international liability for injurious consequences arising out of acts not prohibited by international law (prevention of transboundary harm from hazardous activities).  It was also an important work in the area of environmental law.

He said consideration of the Commission’s report had always been an important part of the work of the Sixth committee.  The commission’s report always raised a number of interesting and challenging legal and policy issues, he said.  The exchange of views and the recently even closer cooperation between the Committee and the Commission had given rise to a dialogue of high intellectual calibre and of great interest.  He was certain that this year’s debate would be stimulating and fruitful following the well-established tradition.

PETER C.R.KABATSI (Uganda), Chairman of the International Law Commission, introduced Chapters I to III of the Commission's report and Chapter IV on State responsibility.  In conformity with previous practice, he said, he would present the other chapters later to provide a concentrated and thematic discussion on the Commission's work.

He said the Commission had a very productive session, completing work on the topic of State responsibility, one of the first topics included in its agenda at its inception in 1947.  It also completed work on the topic of Prevention of Transboundary Harm from Hazardous Activities, a portion of the International Liability topic.  The Commission made good progress on the remaining topics on its agenda, including Diplomatic protection and Unilateral acts of States.

It was intended that the draft articles on State responsibility should have general application to the entire field of international law, he said.  They developed a clear system for regulating the obligations of States in their interactions with other States and, as such, they represented an important step towards a global society where respect for the rule of law was paramount, he declared.

He provided an overview of the draft articles, focusing on the changes made at this year's session.  He also dealt with several issues, such as the question of settlement of disputes and the Commission's recommendations to the General Assembly which was adopted on completion of its work.

He said the title of the draft articles was changed to "draft articles on the Responsibility of States for internationally wrongful acts" to clearly distinguish the topic from the responsibility of the State under internal law.  It also enjoyed the benefit of distinguishing the topic from the concept of international "liability" for acts "not  prohibited by international law".

Thirteen articles embodied in Part Three of the report were devoted to the question of the actions States, faced with a breach of an international obligation, might take to secure the performance of the obligations of cessation and reparation on the part of the responsible State.  The question of countermeasures was again subjected to some debate in the Commission, the Chairman said.  A number of compromises were achieved leading to reformulation of the provisions dealing with the subject.

It was left to the General Assembly to consider whether and what form of provisions for dispute settlement could be included in the text in the event that the Assembly decided to elaborate a convention.  He also said that the question of the final form of the draft articles on State responsibility for internationally wrongful acts was also the subject of some wide-ranging debate.

In the end, he said, it was decided to recommend that the Assembly take note of them in a resolution to which the draft articles would be annexed.  In addition, the Commission decided to recommend that the Assembly consider, at a later stage, and in light of its importance, the possibility of convening an international conference of plenipotentiaries to examine the draft articles to conclude a convention on the topic.  It was considered that the question of settlement of disputes could be dealt with by that international conference, he said.

He observed that when the Commission first began work on the topic in the early 1950s, no one expected it to take 48 or so years to complete.  The Commission believed that the approach it adopted, as well as the content of the articles, provided a major contribution to the codification and development of that important part of international law.

MICHAEL WOOD (United Kingdom) said the topic of State responsibility was of the highest importance.  Completion of the draft articles was a great achievement.  It seemed abstract but it was in reality fundamental to the structure of international law and to international relations as a whole.  While the text was a significant improvement in the text in its final version, some concerns remained.

He cited the article on necessity, the vagueness of the concept of serious breaches and the lack of clarity with the concept of “obligations owed to the international community as a whole”.  However, he said, the draft overall was an important reference point within its area of the law.  The commentaries also shed much light on the draft articles and were a most useful contribution to the understanding of the law.

He said the final text, which had just been issued, deserved a period of study and familiarization.  Experience with the practical application of the articles was also advisable.  It was not clear whether the Sixth Committee should take action on the subject this year.  He would reserve his position regarding future action.

He said his initial reaction was that the first part of the Commission’s recommendation was good but the second presented some questions.  It might not be wise to consider moving to a conference, which could lead to an unraveling of the text and to a convention that was not ratified.  The subject itself was specialized and delicate.  It was “lawyers’ law” and not necessarily suitable for the political rough-and-tumble of a conference.

Rather, he said, the outcome now should allow for the necessary flexibility and for the opportunity to further develop the law in this area through State practice and case law.  A consensus resolution by the General Assembly, which would annex the draft articles and commend them to States, would carry great weight and give the articles an appropriate status.

MARTTI KOSKENNIEMI (Finland), speaking also for the other Nordic countries

-– Denmark, Iceland, Norway and Sweden -– said they agreed with the Commission’s proposal on the future form of the draft articles on State responsibility.  To annex them to a General Assembly resolution was the wisest and strongest format in which they should be adopted for the time being.

The Nordic countries were ready to accept the provisions of Chapter II of Part III on countermeasures, he said.  Although they agreed with many who had noted the extremely delicate nature of resort to countermeasures in the international system generally, they agreed that their use could not be ruled out. The draft would also be seriously incomplete if it did not contain a provision on them. 

In the course of the debate there had been no serious disagreement about the appropriateness of what now was article 22 -– that if an act that would otherwise constitute a breach was taken as a lawful countermeasure, then its wrongfulness was precluded.  He said the International Court of Justice had affirmed that principle in the Gabcikovo-Nagymaros case and there seemed to be little doubt about the principle.

The Nordic countries agreed that the draft articles should reflect the existence of a distinction between the breach of regular obligations and the breach of obligations which, however they were characterized, were of great importance to the international community.  The present articles operated with two types of distinctions in a fashion that left something to be desired.

On article 54, concerning measures by States other than the injured State, he said it was a shame, in a way, that the Commission had been obliged to water down the article to the simple savings clause that it now was.  The formulation seemed to close the door for collective countermeasures in case of breach, even a serious one.  He said the Commission had developed two regimes of aggravated State responsibility whose relationship to each other remained unclear.

He said a serious breach of a jus cogens obligation entailed the duty of non-recognition but -– at least presumptively -– no collective countermeasures.  A breach of an obligation owed to the international community did not entail non-recognition but collective countermeasures, although what those might be was left pending for the further development of the law.  To clarify the situation, he said it might well be advisable for a link to be created between articles 41, 48

and 54.  Paragraph 3 of article 41 went some way in that direction but was, perhaps unnecessarily, limited to the further consequences provided in that Chapter, he said.

He said the Nordic countries believed that attaching the draft articles to a resolution of the General Assembly was not only appropriate in view of their subject matter, and the procedure that guaranteed their unity and rapid adoption, but might also for now put them in the strongest available position.  After their finalization, the articles would become the most authoritative statement available on questions of State responsibility.  There were no conventions or customary practices that would override them, no General Assembly resolutions, or general principles of law that would be situated at a higher level of “normativity” than those articles.  On the contrary, the Nordic countries said the articles themselves were the expression of customary law in the matter, a condensation of the treaties and conventions that bore a relationship to State responsibility.

When disputes on State responsibility arose in the future, it was to those articles that States and lawyers would turn when seeking the applicable law.  The Nordic countries welcomed the final adoption of the articles on State responsibility, he said, and added that it was one of the most significant projects of the Commission and that its impact would be great.  The articles were not perfect, he said, and added that it would be up to State practice and international developments to clarify a number of the details.

MOHAMED BENNOUNA (Morocco) said the draft articles on State responsibility constituted a major pillar that upheld the architecture of international law.  Until recently, “secondary rules” had been lacking, or those that came into play when States violated “primary rules”.  Genius and subtlety had gone into elaboration of the draft articles.  The title appropriately emphasized the responsibility of States for internationally wrongful acts rather than their international responsibility with regard to wrongful acts.

He said the focus of the articles on the harm suffered by actions had opened up the entire question of international liability.  The Commission had done much fine work on drafting principles on a number of key issues, such as hazardous activities.  The articles were well-balanced but the appropriateness of including articles dealing with the principle of countermeasures was questionable.  Countermeasures were legitimized when regulation was the only way to limit the abuse they could constitute.  Recourse to countermeasures should be strictly in keeping with requirements such as prior notification; precautionary measures should not go beyond actions such as the freezing of funds.  Hopefully, mechanisms would be drafted to address such concerns. 

Commending other elements of the articles, such as their prohibition against the use of force, he said the articles prevented the future using of wrongful acts as a pretence for use of force, or for avoiding responsibility in international actions.  The proper distinction between individual or collective measures was still to be clarified.  One question still not answered was whether United Nations-imposed sanctions brought about the end of individual measures taken by States.

Basically, he said, the articles emphasized the need for global cooperation in ending wrongful acts; they should be annexed to a resolution that took note of them.  The Committee should serve as a filter in passing on the Commission’s work to the Assembly.  The draft articles deserved close study in a limited and smaller group, before they were handed over to the academics.  Further debate and analysis was necessary.  It was not enough to hold a general debate and annex the articles to a resolution.  The draft articles did not need to be examined with a fine-tooth comb, but more detail was warranted if they were to have a future.          

BILL MANSFIELD (New Zealand) said the conclusion of the work on the draft articles regarding State responsibility represented a significant milestone in the Commission’s work.  The relationships between parts and chapters of the draft articles had been clarified, as had the central concepts of the basis of responsibility, its content and implementation.  The articles now were comprehensive, well-balanced and well-structured.

Detailing views on the report and on the draft articles, he said the articles had benefited from such decisions as to retain the provisions on serious breaches.  They recognized that States could have a legal interest in performance of obligations even if they themselves were not injured.  The use of countermeasures to induce performance of an obligation had been recognized in customary international law.  The Commission had assessed the risk about possible abuse of the right to take countermeasures and had worked out a well-balanced article.  Even so, the conclusion of the provision did not alter the basic principle that the application of countermeasures should not stand in place of dispute settlement, and that countermeasures should not be imposed if good faith attempts to resolve a dispute were continuing.

Given the careful balance and construction of the text, the draft articles as adopted by the Commission would, hopefully, be acceptable to States.  However, the articles represented both codification and progressive development of international law.  The key issue for the Committee was the form the articles should take now that the Commission had adopted them.

He said the recommendation that the Assembly should take note of the draft articles in a resolution and annex them to the resolution struck an appropriate balance between recognizing the significance of the work and the need for States to consider the draft articles before moving toward their adoption.  The process of negotiating a convention based on the draft articles so soon after being made available carried the danger that individual elements would be looked at out of context and not as part of a whole.  In essence, that would resubmit for discussion a topic which should be considered already decided.

It was important to move carefully and not hastily at this point, he said.  The Commission’s recommendation, that the draft Articles be noted this session with anticipation of their adoption as a convention at some point in the future should be heeded.  Perhaps no decision was necessary this year by either the Sixth Committee (Legal) or the Assembly.  Given the importance and complexity of the subject, governments should be given time to digest the report and the voluminous commentaries before taking a formal decision.

That would not be “shelving” the commission’s achievement, he stressed; rather, such an approach would let the articles stand as an authoritative study of current rules, States practices and doctrine.  As such, they were the definite sources of the rules for developing customary international law on the critical issue. 

EVERT MARECHAL (Belgium) said the codification of the draft articles on the international responsibility of States had been a complex endeavour.  Among the new realities were provisions on serious breaches and obligations owed to the international community as a whole.  He congratulated the Commission for managing to remove controversial provisions and focusing on international responsibilities of States.

He also referred to some issues covered by the articles, such as the definition of the injured State and the application of rules governing international responsibilities of States and violations of international humanitarian law.  He also referred to provisions on reparation, and its particular relevance in today’s troubled circumstances.  He said the Commission was wise in adopting provisions on reparations.

He observed that the Commission had adopted an approach on countermeasures to facilitate their application, which must be proportionate and objective.

He said he endorsed the Commission’s approach on the form the draft articles should take, beginning with the recommendation that the General Assembly take note of it in a resolution to which the articles would be annexed.  The Assembly at a later stage could convene an international conference to examine the draft articles and adopt them as a convention, as proposed by the Commission.

Results of work on the articles were based on compromise, he said.  The text could be improved and enriched through future debates and jurisprudence.

XUE HANQIN (China) said the draft articles were rigorous in structure and rich in content, making provision in a comprehensive way for such topics as elements of international wrongful acts, content of State Responsibility and implementation of international responsibility of States.  The Commission had also striven for a balanced text, paving the way for its acceptance.  Her delegation was concerned that the concept of “serious breaches of obligations assumed under peremptory norms of general international law” might give rise to controversy in practice.  That was because it had not been made clear in the draft articles as to who should judge whether an international wrongful act constituted such a “serious breach”.

The Chinese delegation understood that any State other than an injured one might express some appropriate form of concern if the obligation breached was owed to a group of States or to the international community as a whole.  China was doubtful that it was appropriate to elevate such actions to the level of legal responsibility of the State.  Moreover, it was concerned at the uncertainty in respect of the contents of the obligation breached, whether it was owed to a group of States for the protection of a collective intent of the group or to the international community as a whole.  She said that such an approach would lead to controversy and abuse, since it was difficult to arrive at agreed criteria for judgement.

On the question of countermeasures, she said China had consistently maintained that, in conformity with international law and norms of international relations, countermeasures could be a legitimate means employed by the State injured by an international wrongful act to compel cessation of that act to safeguard its interests.  It was, however, necessary to guard against the abuse by the States concerned of the right to take “countermeasures”.  Appropriate restrictions would be necessary on the exercise of such a right.  A proper balance must therefore be struck between the right to take countermeasures and the precaution against its abuse.

She reiterated China’s opposition to the expansion of the scope of the States entitled to take countermeasures and introducing into the regime of State responsibility such elements as “collective intervention” or “collective sanction”.  China’s position remained “collective countermeasures”, she added.

She said her delegation supported the Commission’s recommendations on the format of the draft articles -– that the General Assembly should take note of it in a draft resolution to which it would be annexed.  The Commission also recommended that the Assembly subsequently should consider the convening of an international conference to examine the articles and adopt a convention.

RONNY ABRAHAM (France) noted parts of the report and said he welcomed improvements, even though the report had again been issued too late for proper consideration in the Committee.  He also noted improvements in the text of the articles, such as its decreased emphasis on the criminality of actions and clarifications.

The International Criminal Court (ICC) had dealt with countermeasures, he said.  The provisions on countermeasures had no role as such in conventions on State responsibility.  Still, the provisions in the articles that dealt with harm suffered were a contribution to clarifying that area of law.  The section on recourse of injured States made certain that the injured State had the right to take the urgent measures necessary to protect its rights, even if the case was still pending in a dispute.  States had no right to take measures once the actions had ceased.

The question of dispute settlement served no purpose in the articles, he said, since many other aspects of international law dealt with the question.  Therefore, it should remain a province of more general legal considerations.  Regarding the form that the articles should now take, the treaty option had seemed the most satisfactory.  Still, France was not opposed to taking note of the draft articles, and annexing them to a resolution as had been done with the issue of succession of States.

ROSS MASUD (Pakistan) said the issue of State responsibility had been one selected for codification since 1949.  He would not make detailled comment at this

stage, but he said some parts of the draft would create problems, such as those dealing with countermeasures and measures taken by States other than an injured State.  The Commission’s recommendation should be heeded.  An international conference to negotiate a convention based on the articles should be held in due time.

Further, he said more work was needed on the articles relating to international liability for injurious consequences arising out of acts not prohibited by international law.  Adopting a convention based on those articles would be premature.  The concept of significant transboundary harm needed to be clarified, and the obligations of States to take all appropriate measures to prevent such acts needed to be elaborated.  Perhaps a working group should be set up for that purpose.

He noted other aspects of the articles and report, including the topic of reservations on treaties and the Commission’s work on diplomatic protection.  He said that in view of the Commission’s workload, its next session should again be held in two parts.

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