Fifty-sixth General Assembly

Sixth Committee

12^th and 13^th Meetings (AM & PM)

LEGAL COMMITTEE REVIEWS PROCESS FOR DEALING WITH

DRAFT ARTICLES ON STATE RESPONSIBILITY

Study at Conference of Plenipotentiaries, Following

Adoption of Text by General Assembly, Is Widely Favoured

The form the draft articles on State responsibility finalized by the International Law Commission should take dominated day-long discussions as the Sixth Committee, at two meetings, continued its examination of the Commission’s report on the work of its 2001 session.

A number of delegations agreed with the Commission’s recommendation of a two-stage action on the draft text -- adoption of a draft resolution on it by the General Assembly to which the articles would be annexed; and the convening, at a later stage, by the General Assembly of an international conference of plenipotentiaries to examine the text and adopt it as a convention.

Some other speakers said their governments were still analyzing the draft articles, comprising 59 provisions and about 300 pages of commentary, and that more time was needed for its in-depth study.  The representative of Germany said it should therefore be on the agenda of the next session of the General Assembly in 2002.

The representative of the Netherlands said the finalization of the draft articles should be seen as a landmark in the codification and further development of international law.  After its adoption by the General Assembly, it would undoubtedly prove to be a useful mechanism in improving international relations, both at the multilateral and bilateral level, he added.

The representative of Australia said the adoption of a resolution on the articles by the General Assembly should not be controversial, and would be a fitting and timely acknowledgement of the major achievement by the Commission.  Since a diplomatic conference would inevitably see a revisiting, opening up and painstaking negotiation of each article, Australia favoured a statement in the resolution which would enable the Assembly to return to the issue in a few years’ time.

It was neither necessary nor desirable for the draft articles to be adopted as a convention at this stage, said the representative of Japan, as it might require a long period for completion and could destroy the delicate balance that had been painstakingly achieved by the Commission.  While he understood the preference of some governments, given the importance of the issue, to adopt a

convention, he believed the ingenious two-stage approach formulated by the Commission reasonably satisfied both positions.

Also speaking in the morning meeting were the representatives of Belarus, South Africa (on behalf of the Southern African Development Community), Bahrain, Spain, Singapore and Germany.

Speaking in the afternoon were the representatives of Austria, Italy, Israel, Mali, Poland, Nepal and Cyprus.

Addressing the Sixth Committee this morning, the President of the International Court of Justice, Judge Gilbert Guillaume expressed concern about the proliferation of international judicial bodies and their impact on international law.  The risks of conflicting case law had also grown.  He remained convinced, he said, that the proliferation of international judicial bodies could jeopardize the unity of international law.  He therefore continued to believe that international lawmakers and courts must in the future exercise great caution in that area.  He feared, however, that such caution was not enough and that procedures ought possibly to be established to allow the International Court of Justice to rule on such preliminary questions as specialized international courts might wish to submit to it.

The Committee will meet next tomorrow, Thursday, 1 November, at 10 a.m. to continue its discussion of the report of the International Law Commission.

Background

The Sixth Committee (Legal) met this morning to continue its consideration of the report of the International Law Commission on its 2001 session (document A/56/10 and Corr.1).  The session was held this year in two parts in Geneva, from 23 April to 1 June and from 2 July to 10 August.  The Committee is concentrating its debate on the section of the report dealing with the Responsibility of States for internationally wrongful acts, draft articles for which were finalized by the Commission at the session.  (For details of the report see Press Release No. 3188 of 29 October 2001).

      Statements

CHUSEI YAMADA (Japan) noted that State Responsibility was one of the topics for codification at the first session of the International Law Commission in 1949. He congratulated the members of the Commission on the completion of the second reading of the draft articles.

Japan strongly supported the recommendation that the Assembly take note of the draft articles in a resolution at this session and that it consider the convening of a conference of plenipotentiaries to examine the draft articles with a view to concluding a convention.  It was neither necessary nor desirable for the draft articles to be adopted as a convention at this stage, as it might require a long period for completion and could destroy the delicate balance that had been painstakingly achieved by the Commission.  While he understood the preference of some governments, given the importance of the issue, to adopt a convention, he believed the ingenious two-stage approach formulated by the Commission reasonably satisfied both positions.

Turning to specifics of the draft articles, he said he welcomed the exorcism of the ghost of “international crime” from the articles.  However, Japan did recognize the qualitative differences between serious breaches and ordinary breaches; he questioned, though, whether there were legal consequences flowing out of serious breaches that were special and different from those of ordinary breaches.  The task of the Commission was not legislation but the codification and development of international law.  Although Japan was not fully convinced of the need to retain the category of “serious breaches”, it understood and accepted the new provision on those breaches as a delicate compromise among different opinions.  He said the inclusion of the “peremptory norm” concept in the Law of State Responsibility inevitably established a link to the Law of Treaties that might have unexpected results.  Although Japan was not against the usage, extra caution would be needed in defining and developing the content of  “peremptory norms”.

Another concern was the previous provision on countermeasures taken by States other than the injured State.  He was pleased to note that it had been deleted.  The new “without prejudice” clause in Article 54 avoided going beyond the codification and progressive development and did not exclude the future possibility of the role of States other than the injured State in re-establishing the legality of the norms that were breached.  He appreciated the fact that the new text clarified the relationship between “damage” and “injury”.

ANDREI POPKOV (Belarus) welcomed the finalization of the draft articles on State responsibility and International liability for injurious consequences arising out of acts not prohibited by international law, and said the two texts should take the form of a convention.  That would have a positive effect on the application of the law.  The results of the Commission’s work should, as a rule, be legally binding, since that would enable the Commission to carry out its duties as mandated.

He noted the Commission’s recommendation that the General Assembly, after taking note of the draft articles on State responsibility, should at a later date convene a conference of plenipotentiaries to examine the text.  The result should be a complete convention covering all aspects of the question of State responsibility.

He expressed satisfaction at the agreement on countermeasures; including all aspects of the issue in a single document would not only guarantee enforcement but would limit their violation.  Attention should be paid to the question of collective coercive measures in international relations.  It was useful to include provisions on those measures.

He said he welcomed the progress the Commission had made on the provisions of article 48, concerning the invocation of responsibility by a State other than an injured State.  He appealed for inclusion of provisions on dispute settlement, which the Commission had decided to leave out.  Belarus believed it was possible to keep the draft in an international instrument to make it effective.

The chairman of the Sixth Committee, PIERRE LELONG (Haiti), welcomes the President of the International Court of Justice to the committee, saying the Committee continued to follow the work of the Court, which was of great value.

JUDGE GILBERT GUILLAUME, President of the International Court of Justice, recalled that last year he had spoken to the Committee about a question of ongoing concern to the international legal community:  the proliferation of international judicial bodies and their impact on international law.  The extensive reaction to that presentation from diplomats, academics, journalists and legal practitioners showed that the concern was widely shared and was cause for much questioning.

There had been no improvement in the situation since last year, he said.  The risks of “forum shopping” had worsened.  He cited the case of the swordfish stocks dispute between Chile and the European Union and the Bluefin Tuna case in which the International Tribunal for the Law of the Sea found that it had prima facie jurisdiction, but the Arbitral Tribunal set up by Australia, Japan and New Zealand ultimately came to the opposite conclusion.

The risks of conflicting case law had also grown.  The International Court of Justice had, for example, recently been seized of an application by Liechtenstein instituting proceedings against Germany, in a case in which certain aspects had previously been dealt with by the European Court of Human Rights.

He remained convinced, he said, that the proliferation of international judicial bodies could jeopardize the unity of international law.  He therefore continued to believe that international lawmakers and courts must in the future exercise great caution in that area.  He feared, however, that such caution was not enough and that procedures ought possibly to be established to allow the International Court of Justice to rule on such preliminary questions as specialized international courts might wish to submit to it.

He said the Court handed down several significant judgments last year, notably the decision of 16 March 2001 on a territorial dispute between Qatar and Bahrain concerning sovereignty over islands and the marine delimitation to be established between the two States.  He said on that occasion the Court enlarged upon several points of its jurisprudence on the law of the sea.  That contribution by the Court was both manifold and of long standing, he said.

The Court had played, and continued to play a vital role in that domain, having been seized of a total of some 20 international disputes involving the law of the sea.  The Court’s jurisprudence had concerned a wide range of areas of that law:  freedom of the high seas, rights of passage through straits and through the territorial sea, nationality of ships, jurisdiction over those ships and their crews, fishing rights etc.  Delimitation of those areas was long considered a secondary question, involving the fixing of the boundaries between narrow territorial seas, he said.  The extension of State jurisdiction to the high seas and technological developments had made that one of the main territorial issues of the last 30 years.

The law of the sea was not immune to constantly developing international law.  He said it was encouraging to note that the law of maritime delimitation, by means of those developments in the Court’s case law, had reached a new level of unity and certainty, while conserving the necessary flexibility.  He said that in all cases the Court -- as States also did -- must first determine provisionally the equi-distance line.  It must then ask itself whether there were special or relevant circumstances requiring that line to be adjusted to achieve equitable results.

The legal rule was now clear, he said, but each case nonetheless remained an individual one, in which the different circumstances invoked by the parties must be weighed with care.  As a result of those developments, the Court had, in his opinion, managed to reconcile law and equity.  The Court still had before it other cases of the same type, notably between Cameroon and Nigeria and between Honduras and Nicaragua.  He assured the international community that those cases would be adjudicated in the same spirit.

ALBERTUS HOFFMANN (South Africa), speaking on behalf of the Southern African Development Community (SADC), said that the Community believed in principle that a set of draft articles prepared by the International Law Commission on such an important topic should be referred to a diplomatic conference for adoption in treaty form.  There were, however, special circumstances which rendered some delay desirable in this case.  The draft articles covered a wide field  and raised a range of complicated issues that required careful consideration by States.  Most of the articles reflected customary law and did not require translation into treaty form.  The few articles that constituted progressive development were the ones that required careful consideration and it would be helpful to see whether they proved to be acceptable to States in their practice in the next few years.

It was unlikely that a treaty reflecting the draft articles would be ratified by many States, he continued. There was no lobby that would push for its speedy ratification as in the case of the Convention on the rights of the Child, for which United Nations Children's Fund (UNICEF) lobbied vigorously, or the International Criminal Court Statute, for which human rights and humanitarian law non-governmental organizations lobbied.  It would take years for such a treaty to come into force and even then it would be ratified by a limited number of countries, which would impair its authority and credibility.  Finally, there was a real danger that a diplomatic conference, by amending or rejecting some of the articles, might seriously undermine the integrity and coherence of the text.

He said the SADC therefore supported the recommendation of the Commission that the Assembly take note of the draft articles, and annex the text in a resolution.

On the specifics of the articles, he said he welcomed the removal of draft article 19, saying that while individual criminal responsibility for violations of international law was accepted today and formed the basis of the International Criminal Court Statute, State criminal responsibility was another matter.  Article 40 wisely provided that where there had been a serious breach by a State of an obligation arising under a peremptory norm of general international law, involving a gross or systematic failure by the State to fulfil the obligation, all States should cooperate in bringing the breach to an end and withhold recognition of the situation.

The sanction of non-recognition and non-assistance provided in article 41 had special significance for SADC as it was the sanction applied to South Africa’s administration of Namibia, and to Rhodesia and the Bantustan States.  All States had an interest in compelling States to comply with their obligations arising from peremptory norms.  Thus they had the right to invoke responsibility for breaches of obligations owed to the international community as a whole.  The draft articles wisely provided for that in article 48.

The whole issue of reprisals or countermeasures was controversial. Countermeasures had no place in a developed and centralized legal system, he said. Unhappily, international law had not reached that stage.

JOHAN G. LAMMERS (Netherlands) said he supported the Commission’s recommendation that the draft articles on State responsibility be taken note of by the General Assembly in a resolution to which the articles would be annexed.  However, the Netherlands was hesitant about the usefulness of a future convention being elaborated by an international conference convened by the Assembly.  There might be a number of disadvantages in trying to develop a convention, certainly on a short term.

There were no such disadvantages if the Committee restricted itself to the first part of the Commission's recommendation that the General Assembly adopt a resolution on the draft articles.  The greater part of the articles reflected customary international law, and their incorporation into a convention would add little to the development of international law.  He favoured the inclusion of the draft articles into an annex to a General Assembly resolution, and did not exclude the fact that the draft articles might eventually be elaborated as a convention.

Examining the draft articles in detail, he said, the Netherlands had already extensively commented on the replacement of “international crime” by the inclusion of some provisions on the legal consequences of “serious breaches of obligations under peremptory norms of general international law”.  On the legal regime of countermeasures, he said the draft had struck the right balance between the use of that instrument and the provision of appropriate safeguards against misuse.

Although the Netherlands had a few reservations about the final text, finalization of the draft articles on State responsibility should be seen as a landmark in the codification and further development of international law.

HUSAIN M. AL BAHARNA (Bahrain) said the concept of “serious breaches of obligations” was the price for the acceptance of the deletion of the concept of international crimes.  Bahrain supported the adoption of the draft articles in the form of an international convention as it would insure their stability, continuity, reliability and binding force.

He was not satisfied with the reasons given for changing the title of the topic from “State responsibility” to “State Responsibility for International Wrongful Acts”.  The traditional title had been well known for centuries, since the emergence of international law in modern societies and since text books on international law were published.

Commenting on the contents of specific articles, he said that the present article 41 cut short the stringent provisions of former article 42, without providing any acceptable solution in terms of, for example, the payments of “damages reflecting the gravity of a breach”.  The Commission had therefore deprived the injured State from its entitlement to the special damages reflecting the gravity of the breach of the obligations by the responsible State.

He also noted that the Commission had decided to adopt a stricter and what he considered a much weaker concept of peremptory norms, in preference to the widely accepted principle of the international community as a whole.  Article 42 clearly distinguished between the individually injured State and the other group of States, or the international community as a whole, to which the obligation breached was owed.  However, the article seemed to be unnecessarily crowded with many provisions which could give rise to misunderstandings.

He said article 48 on the invocation of responsibility by a State other than the injured State had slightly improved the drafting of the previous article 49 carrying the same title.  Article 49 was well balanced and contained the necessary limitations and conditions concerning countermeasures.  Article 50 on obligations not affected by countermeasures was on the whole acceptable, as was article 51 on proportionality.  However, he suggested some revisions to article 52, since it was “general and arbitrary” because it was left to the injured State itself to define what was meant by urgent countermeasures.

AURELIO PEREZ GIRALDA (Spain) said Chapter Four of the International Law Commission reflected the long and difficult task undertaken by the Commission, and by governments, in the successful finalization of draft articles on State responsibility.  The Special Rapporteur had provided solutions to the most difficult problems presented in the first reading of the text in 1996. 

A balanced proposal to annex the draft articles to an Assembly resolution, and for the Assembly to consider convening a conference in the future to adopt the articles as a convention had been presented.  Although Spain had supported the adoption of the draft articles as a binding instrument, it was very aware of the absence of a sufficient consensus on the matter.  The Commission’s proposal was therefore realistic.  At a later stage, the draft articles could be adopted in a binding way.  The compromise met the minimum common denominator of government positions.  Spain would support the proposal despite disappointment that certain concerns were not reflected in the final text.

Turning to diplomatic protection, he said it was appropriate to approach a legal regime first from the exhaustion of local remedies.  He appreciated that a distinction was now being made between the conceptual and the procedural.  As to the debate on continuity of nationality, it was appropriate to maintain the traditional rule together with specific exceptions.

Concerning unilateral acts, he said, the Special Rapporteur had made a valuable contribution.  The difficulty of the topic was demonstrated by the recurring discussion on the feasibility of a study, and by the apparent difficulty States had in submitting information on State practice in the area.  There was great interest in clarifying the factors that could be used in determining if an act or its omission constituted a unilateral act.

MICHAEL BLISS (Australia) said the International Law Commission report represented the culmination of almost fifty years of work.  That the project took that long was an indication of how ambitious a project it was.  When the Commission first proposed the issue of State responsibility as one of its foundation topics, few could have imagined how much the international law landscape would change in that time.

It was clear from the content of the draft articles, that the Commission had paid close attention to the comments of States on previous versions of the draft articles, he said.  As a result, this was now a text over which Member States should feel a sense of ownership.  Australia welcomed the use, in article 42, of the phrase “international community as a whole”.  That phrase achieved the requisite breadth of coverage —- not only States but also international organizations and other persons and entities.  He also welcomed the wording in article 31 which defined “injury” as including damage rather than consisting of damage.  Noting that Australia had difficulty with the previous definition of an “integral obligation”, he was pleased to see that it had been replaced by a clearer and more definite formulation.  Australia had long supported the inclusion of a countermeasure regime and was pleased to see them appear in the text.

He expressed concern that the link envisaged by the articles between the conduct of an insurrectional movement and the State responsibility of a new State which emerged from that insurrectional movement was too open-ended.  It would have been useful to have some further elaboration in the text on the degree of proximity, or the particular time frame required, for the conduct of an insurrectional movement, which became the new government of a State, to be considered an act of that new State.

He said Australia supported the recommendation that the Assembly takes note of the draft articles and annex them to the resolution.  The adoption of such a resolution, to the extent that it was neutral as to the contents of the draft articles, should not be controversial, and would be a fitting and timely acknowledgement of this major achievement by the Commission.

WARREN P. CHEK (Singapore) commended the Commission's pragmatic use of commentaries to reduce the density of its texts.  The procedure made sense, given the need for conciseness on topics of great complexity such as State responsibility.  The commentaries would provide authoritative guidance in the interpretation of provisions of the texts.  He also noted the Commission's use of guidelines as a useful possible alternative to articles for a draft model convention.

He congratulated the Commission on the completion of its work on State responsibility and, specifically, the last Special Rapporteur on the topic, Professor James Crawford.  He believed the text and commentary would significantly contribute to both the codification and progressive development of international legal rules on State responsibility.

He also commented on other topics considered by the International Law Commission at its session, including Reservations to Treaties, Diplomatic Protection and Prevention of Transboundary Harm from Hazardous Activities.  He noted that a suitable time frame of 12 months for objections to treaties had been established in the text on reservations to treaties, to ease some concerns and remove uncertainties.  He hoped States and organizations would not routinely make objections solely on the grounds of late formulation of reservations, otherwise there would be no need for the guidelines provided in the text.

On the draft articles on Prevention of Transboundary Harm finalized by the Commission at its session, he said he was pleased that the articles tackled mainly the practical issue of the management of risk.  The emphasis on good faith cooperation and consultation among States concerned showed sensitivity to the difficulties many countries faced in controlling transboundary harm.  It would also ensure greater acceptance of the draft articles, he said.

Singapore was pleased that the draft articles on International Liability for injurious consequences arising out of acts not prohibited by international law tackled mainly the practical issue of management of risk as part of the prevention of significant transboundary harm.  The emphasis on good faith cooperation and consultation among States concerned showed sensitivity to the difficulties facing many countries in controlling transboundary harm emanating from their territories.

GERD WESTDICKENBERG (Germany) said the importance of the topic of State responsibility stemmed in particular from the fact that it might be incurred in all fields of international law.  It was admirable that the Commission had succeeded in finalizing the draft articles this year.  The rules on State responsibility constituted what he termed “secondary rules” that could be invoked every time a “primary rule” of international law was breached.

He suggested that the subject of State responsibility should be placed on the General Assembly’s agenda at its next session in 2002 to allow for in-depth study of the draft articles which comprised 59 draft provisions.  The Commission’s report contained 300 pages of commentary on the topic.  Germany favoured the adoption of the draft articles by the General Assembly in the form of a resolution with the articles annexed to it.  He said that would assure the broadest possible acceptance of the rules and avoid the danger of unravelling the text.

Commenting on the draft articles on International liability for injurious consequences arising out of acts not prohibited by international law, which the Commission had finalized, he said it was of particular and increasing relevance to the environment and damage or hazards to it.  The draft on liability for conduct considered legal under international law was venturing into uncharted territory, even though trans-border pollution was nothing new, he said.  The implications of

the new rules were potentially very broad, and the equitable balance of interests that the draft articles was striving for would not be easy to ascertain.

He also referred to the topics of Diplomatic protection, Unilateral acts of States and Reservations to treaties which were also considered by the International Law Commission at its session.  On Diplomatic protection, he said new elements had been added to its discussion.  Under modern international law, the protection of individuals was no longer the exclusive right and concern of their home State.  Under a number of international instruments, in particular in the field of human rights, individuals now enjoyed a legal position of which they could avail themselves even without the intervention of their home State.

The meeting was adjourned.

When the Committee met again this afternoon, HANS WINKLER (Austria) said he supported the wise approach recommended by the Commission concerning the draft articles.  It would allow testing of the draft articles as to their adequacy in light of State practice.  Should there be a decision on convening an international conference, the work of the conference would have gained from the experience with the draft articles.  If not, they could continue to serve, insofar as they were accepted by State practice, as a kind of “code of conduct” on matters of State responsibility.

Recent events had confirmed that State responsibility was a highly sensitive subject and, together with the non-use of force and non-intervention, to which it was closely related, perhaps the most highly politically charged part of international law.  Under those circumstances, a code of conduct was the best means to consolidate the law of State responsibility, even at the risk that in the short run deviations might occur and might have to be tolerated.

He said the draft articles in the Commission report on transboundary harm represented a well thought-out and elaborate set of provisions which would prove to be of fundamental importance to the international community in the challenge of how to deal with transboundary harm from hazardous activities.

He said he had studied the guidelines pertaining to reservations formulated upon signature when a treaty expressly provided for that possibility.  It seemed questionable whether there really was sufficient State practice for the view that in cases where the treaty itself provided for the possibility to make a reservation upon signature, a confirmation upon ratification should not be necessary any more.  State practice in the field was uncertain and inconsistent.  He was also concerned that establishment of guidelines on late formulations of reservations would have the effect of making the whole regime of treaty reservations applicable also to the so-called late reservations.

As to the programme of the International Law Commission for its next sessions, he said it would be of particular interest to appoint a Special Rapporteur on the question of responsibility of international organizations.  The issue of shared natural resources could also be a promising subject.  However, it was not entirely clear what was envisaged under the item.

UMBERTO LEANZA (Italy) expressed thanks for the tireless efforts that had resulted in the finalization of the draft articles on State responsibility.  He commended various changes, noting the clearer criteria upon which certain conduct could be attributed to a State.  Likewise the clarifications as to circumstances precluding wrongfulness were of a timely nature.  He praised the replacement of the phrase “international community of States as a whole” with “international community as a whole”.  He said Italy had always maintained the existence of certain particularly serious breaches of obligations as opposed to ordinary breaches.  However, it had accepted the compromise of the removal of the term “international crime”.

The draft articles seemed to be expanding the categories of internationally wrongful acts.  It was important to take account of the severity of the breach. Although the wording proposed by the Commission was acceptable, it was not free of uncertainties, he said.  Also, the formulation of the article concerning the injured state on the gravity of the violation involved an assessment that was considerably discretionary.  As to the consequences of grave breaches, he noted the general rules that imposed the obligation of cooperation by lawful means and the obligations of non-recognition and non-assistance.  The possibility of additional consequences from the international community was a compromise provision.

Countermeasures were one of the most controversial issues and even if one considered countermeasures as an important tool within the international system for imposing legal order, one could accept the Commission’s conditions and limits on such recourse as a sensible balance.

He believed it was inadvisable at this time to adopt the draft articles in the form of an international convention, since it would open the articles to negotiations that would consume a great deal of time and might not lead to positive results.  He therefore supported their adoption through an annex to an Assembly resolution.

YORAM DINSTEIN (Israel) said the personal contribution of the Special Rapporteur, Professor James Crawford, could only be appreciated when it was perceived that, within a relatively short time, he had managed to put on the right track a project that had appeared to many observers to have gone astray, and to steer it safely to final destination.  He agreed that the Assembly should take note of the draft articles, and annex them to its resolution.  After so many different versions over the years, the final draft articles should be allowed to be widely disseminated in order to enable them to go through the crucible of international theory and practice.  Only then would it be feasible to consider the advisability of convening a diplomatic conference to consider and recast the draft articles in the form of a treaty.  In the meantime, the draft articles would have to win for themselves the respect of scholars, the imprimatur of judicial and arbitral courts and tribunals and, in the final analysis, the affirmation of the marketplace of jurisprudential ideas.

He said that while the commentary went into greater detail on the question of definitions, he could not share the confidence of the Special Rapporteur that jus cogens coincided with the norms listed.  It was a popular tendency to spread the wings of jus cogens to an ever-increasing roster of rules of international law, and it was time to consider to what extent any such enumeration was realistically justified.  He welcomed the decision not to encumber the draft articles with dispute settlement mechanisms.  Even if a treaty on the law of State responsibility were to be adopted in the years ahead, it should not incorporate clauses on dispute settlement. 

SALIFOU FOMBA (Mali) said state responsibility was a central question in international law.  As the general scope of the draft articles had taken more than 40 years to complete it had undeniably benefited from the expertise of many.  Its political importance and the stakes involved were explained and justified by the fact that its provisions were not all perfect.  The proof of that was the continued problems still raised by important issues.

On the question of serious breaches of obligations owed to the international community as a whole, he noted the various approaches taken by the Commission, namely, to retain the relevant chapter as it stood, retaining it to improve it, or simply getting rid of it.

He had no quarrel with the right of States to take countermeasures, but felt the exercise of that right must be accompanied by necessary and sufficient guarantees to limit the possibilities of abuse.

On the question of dispute settlement, he said the present provisions of articles 5 and 52 contradicted neither the spirit nor the letter of Article 33 of the United Nations Charter, since it proposed a largely voluntary system and gradual procedures.

On the form the draft articles should take, he said Mali, in principle, supported their elaboration as a convention, but it was open to other ideas on the subject.  Instead of adopting it directly as a convention, it accepted the Commission’s recommendations of a two-stage approach -- the adoption of the draft articles by the General Assembly in a resolution with the articles annexed to it; and the convening at a later stage by the Assembly of an international conference of plenipotentiaries to examine the articles and adopt them as a convention.  His delegation was also open to the Moroccan proposal of the establishment of a special committee or a working group to study the articles further.

WLADYSLAW CZAPLINSKI (Poland) stressed that the draft articles on State responsibility constituted a well-balanced compromise and that its provisions reflected all the current trends in contemporary international law.  It would be extremely difficult to introduce amendments that could be accepted by all States. Saving clauses included in the text ensured the necessary flexibility and left space for the freedom of action of States involved in specific international legal disputes.  He also stressed that the scholarly and exhaustive commentary to the draft articles could be referenced as a model for future codification.

He said the problem of attribution to a State of the acts of non-State agencies was not completely clear.  In particular, the notions of control, direction and instructions as used in Chapter II of the draft articles should be precise in the commentary, even though it might be expected that international practice would find satisfactory explanations and interpretation of those concepts.  He welcomed the introduction of the responsibility of the State for activities of parastatal organizations or agencies.

He also said he did not see any reason why grave breaches were limited to peremptory norms of international law.  It seemed to him that there was no general agreement on the identification and content of that concept.  There were numerous norms of international law which had never been suggested to become peremptory, but which were fundamentally important for the international community as a whole and deserved a corresponding degree of protection (like humanitarian norms or diplomatic law), he said.

He hoped that all the difficulties connected with the interpretation and implementation of the articles on State responsibility would be resolved by their application in practice.  He accepted the Commission’s recommendations that the General Assembly take note of the articles in a resolution to which the text would be annexed.  

SURYA P. SUBEDI (Nepal) said the work of the International Law Commission should now be reviewed, assessed and appreciated to prepare it for the challenges ahead.  The Commission must be revitalized to make it more effective for the codification and progressive development of international law.  It should be given more resources to effectively discharge its responsibilities.  The objective of international law should be to promote justice, not only among nations, but also across generations.

It was therefore necessary for international law to be developed in such areas as joint management of shared natural resources and information technology.  The ever-increasing use of information technology, especially as a primary vehicle of globalization, and the absence of a global treaty to regulate it, called for its study by the International Law Commission in the future.  There were other areas that would become more crucial and more relevant in the years to come as States competed for the same resources to meet their needs.  The International Law Commission could play a very effective role in those areas by recommending suitable measures.

His delegation favoured the adoption of a resolution on the draft articles on State responsibility by the General Assembly to facilitate the adoption of a relevant legally binding global treaty at a later date.  It was important for States to have the opportunity to study the draft articles before their adoption as a treaty.

His delegation would like more time to examine more closely some of the provisions of the articles, such as those of Chapter III of Part Two and Chapter II of Part III.  It would also like to consider further the provision of the articles on countermeasures in the light of article 33 of the United Nations Charter and other doctrines concerning dispute settlement between States.

ANDREAS J. JACOVIDES (Cyprus) said the position of governments stated orally before the Sixth Committee should be given equal weight with written responses to questionnaires of the Commission.  He welcomed the completion of the draft articles and agreed with the Commission that the General Assembly should adopt a resolution on the articles to which the text would be annexed.  It also agreed with the recommendation that at a later stage the Assembly should adopt it as a convention after an international conference had examined the articles.

The absence of a provision in the finalized text on State responsibility for dispute settlement was a shortcoming.  He attached importance to the establishment of an effective dispute settlement mechanism and supported the view that, given the importance of the topic of State responsibility, the General Assembly should adopt a convention on it with a provision on dispute settlement.

He welcomed the completion of the second reading of the topic of international liability for injurious consequences arising out of acts not prohibited by international law.  He also noted the Commission’s recommendation that the General Assembly should elaborate a convention on the basis of the draft articles on the topic.

Turning to other topics considered by the Commission, he said he looked forward to the Commission concluding early its work on guidelines to the reservations to treaties.  On the topic of unilateral acts of States, he said governments should be encouraged to respond to the questionnaire prepared by the Special Rapporteur on the topic.

His government supported the exchanges of information between the Commission and such bodies as the International Court of Justice, the Asian-African Legal Consultative Organization and the Inter-American Juridical Committee.  It also welcomed the training offered to participants from different countries.

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