Sixty-second General Assembly

Sixth Committee

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

REVIEWING ISSUES OF HARM, DAMAGE FROM UNLAWFUL TRANSBOUNDARY ACTIONS,

LEGAL COMMITTEE WEIGHS MERITS OF GUIDELINES, FORMAL TREATY

 

Some Delegates Say Convention May Draw Fewer Supporters;

Four Groups Recommended for Observer Status in Work of General Assembly

The Sixth Committee (Legal) today recommended the granting of observer status in the work of the General Assembly to four organizations by approving relevant draft resolutions without a vote, while concluding debate on prevention of transboundary harm from hazardous activities and responsibility of States for internationally wrongful acts.

The organizations to be granted observer status are:

-- Regional Centre on Small Arms and Light Weapons in the Great Lakes Region, the Horn of Africa and Bordering States, which is an international and intergovernmental body serving as a framework for combating arms and promoting human security through legislative and administrative means;

-- Italian-American Institute, which aims to enhance cooperation between States, promotes knowledge through its Library and Centre for Documentation, and fosters relations between Europe and Latin American countries;

-- Energy Charter Conference, which is the governing body of the Energy Charter Treaty and its Protocol on Energy Efficiency, a legally binding instrument on investment and trade; and

-- Eurasian Development Bank, located in Kazakhstan that serves as an investment and development information centre.

Introducing the topic of prevention of transboundary harm from hazardous activities and the allocation of loss in the case of such harm, the Chairman of the Sixth Committee, Alexei Tulbure ( Moldova), recalled the two aspects of the item, prevention and liability.  The Assembly this session was to decide what form the articles on prevention and the principles on liability should take.

Noting the close relationship between the prevention and liability aspects of the matter that involved the principles on allocation of loss, the representative of New Zealand (speaking also for Australia and Canada) said the best course seemed to not move ahead towards a convention without broad and unified support.  The Assembly should welcome the articles and commend them to the attention of States, also encouraging States to be guided by the articles in the conduct of their relations, especially in negotiating agreements.

Others speaking to the matter were the delegates of Norway (for the Nordic countries), Portugal, China, Argentina, United States, United Kingdom, Mexico, Japan, Malaysia, Pakistan, Russian Federation, Venezuela, Austria and Indonesia.

When the Committee turned to State responsibility for internationally wrongful acts, the representative of Poland said the articles elaborated over 40 years were one of the most monumental achievements of the International Law Commission.  A convention should not be elaborated now.  Rather, the General Assembly could commend the articles to the attention of Governments and express satisfaction that they were extensively the point of reference for international and domestic courts, tribunals and other bodies in their decisions and opinions.

Nigeria’s representative said there was no urgency to conclude a convention since the articles were already in use as guides in courts, tribunals and other bodies.  Elaborating a convention risked the chance of watering down the principles achieved through compromise.

However, the representative of France (among those favouring work towards a convention) said the sensitivity and reach of the draft articles on State responsibility called for care in deliberations.  A convention would be useful in clarifying the concepts.  Also, the International Law Commission’s mandate was not to offer guidelines.  A conference should be convened to clarify the outstanding issues.

Other speakers on that topic were the representatives of Australia (also for Canada and New Zealand), Finland (for the five Nordic Countries), Libya, India, Portugal, Cuba, Guatemala, Mexico, China, Germany, Austria, Chile, Malaysia, Republic of Korea, Greece, Pakistan, Spain, United States, Cyprus, United Kingdom, Italy, Japan, Russian Federation, Ethiopia, Venezuela and Sierra Leone.

Finally this morning, the Committee concluded its debate on the report of the United Nations Commission on International Trade Law (UNCITRAL).  Speaking on that matter were the representatives of Venezuela, Iran, and El Salvador.

The Committee will meet again at 10 a.m. on Thursday, 25 October, to consider the rule of law at the national and international level.

Background

The Sixth Committee (Legal) met this morning to take up questions related to transboundary harm and State responsibility, while also concluding debate on the report of the United Nations Commission on International Trade Law (UNCITRAL) and taking action on draft resolutions related to requests for observer status in the work of the General Assembly.  (For background on the UNCITRAL report, see Press Release GA/L/3324 of 22 October.)

The Committee’s consideration of the issue of transboundary harm stems from the Assembly action last year in commending to Governments a set of draft principles on “prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm”, based on earlier work (documents A/56/10 and A/61/10).  The Sixth Committee was to consider the matter, in the context of responses, if any, from Governments.

The draft principles are part of the work of the International Law Commission towards the elaboration of a convention on “international liability in the case of loss from transboundary harm arising out of hazardous activities”.  That topic, in turn, is part of the Commission’s study of “international liability for injurious consequences arising out of acts not prohibited by international law” under the broad category of “international liability for injurious consequences arising out of the performance of other activities”.

On the subject of “responsibility of States for internationally wrongful acts”, the Committee had before it a report of the Secretary-General (documents A/62/62 and Corr.1/Add.1), which is a compilation of decisions of international courts, tribunals and other bodies referring to articles on the subject adopted by the International Law Commission at its fifty-third session in 2001.

The Secretary-General’s report contains extracts of decisions under each of the articles referred to by those bodies, following the structure and numerical order of the State responsibility articles.  According to the report, there had been 129 instances in which the articles had been referred to by those courts or bodies.

The General Assembly, by its resolution 56/83 of 12 December 2001, took note of the 59-article text on State responsibility and commended it to the attention of Governments without prejudice to its future form.  In its resolution 59/35 of 2 December 2004, the Assembly commended once again the articles to the attention of Governments, and requested their written comments on its future form.

Also before the Committee today is another report of the Secretary-General (document A/62/63 and Add.1), on the matter of State responsibility, containing more responses from Governments.

The Committee was to consider four requests for observer status in the General Assembly.  It had before it a draft resolution on the Regional Centre on Small Arms and Light Weapons in the Great Lakes Region, the Horn of Africa and Bordering States (document A/C.6/62/L.2 and Rev.1).  By that draft, the Assembly would grant that organization observer status in its work on the recommendation of Kenya (document A/62/141), which states in a background paper that the organization is an international and intergovernmental body that serves as a framework for combating the relevant arms in its region.  The paper from Kenya also states that the Regional Centre promotes human security by ensuring that appropriate legislative and administrative measures are put in place by parties to the 2005 Nairobi Declaration relating to small arms and light weapons in the region.

A draft resolution on the Italian-Latin American Institute (document A/C.6/62/L.5) would have the Assembly grant observer status to that organization at the request of Italy (document A/62/143), on behalf of itself and 12 other States members, namely Argentina, Brazil, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Peru and Uruguay.  (The text says the others, of the total of 21 members, are Bolivia, Chile, Cuba, Haiti, Mexico, Panama, Paraguay and Venezuela.)  Founded in 1966, the organization aims to enhance cooperation between its member States through tangible programmes promoting knowledge and development in social, economic, cultural and technological-scientific areas, particularly through its Library and Centre for Documentation.  Recognized for its role in fostering relations between Europe and Latin American countries, the Institute has now consolidated its international presence and therefore desires to strengthen and institutionalize relations with the United Nations.

The Energy Charter Conference is the subject of another draft text (document A/C.6/62/L.3 and Corr.1), by which observer status would be granted at the request of Japan (document A/62/191).  The background document reports that the Conference is the governing body of the Energy Charter Treaty and its Protocol on Energy Efficiency and Related Environmental Aspects, signed in December 1994 and in force since April 1998.  To date, 51 States and the European Union have signed or acceded to the Treaty, while 19 countries and 13 international institutions participate in Conference activities as observers.  A legally binding multilateral instrument on investment and trade, the Treaty is the only one of its kind dealing specifically with intergovernmental cooperation in the energy sector.  It provides a multilateral framework for energy cooperation, while establishing a legal foundation for energy security.

The background document concludes that the granting of observer status to the Conference in activities of the General Assembly would be mutually beneficial to the Conference and to the United Nations, particularly its Commission on Sustainable Development.  Enhanced cooperation would promote the aims of both; it would also enable them to achieve more complementarity in their work and would widen the potential for more systematic forms of cooperation.

Finally, a draft resolution on the Eurasian Development Bank (document A/C.6/62/L.4) would have the Assembly grant observer status in its activities to that group at the request of Kazakhstan (document A/62/194) on behalf of the Bank member States, comprising itself, Belarus, Kyrgyz Republic, Russian Federation, Tajikistan and Uzbekistan.  The background document states that the Bank is an international intergovernmental organization promoting socio-economic development and integration in the Eurasian area.  It engages in investment activities, advises members on questions of economic development and cooperates with others in the region at all levels.

Statements on UNCITRAL

ADRIANA CELIS ( Venezuela) said that UNCITRAL’s texts helped States to strengthen their various legal arrangements and internal legislation.   Venezuela supported the Commission’s work in the field of international trade law and the harmonization of various trade regimes.  It was also grateful for the technical assistance the Commission offered.   She said Venezuela welcomed the progress made by the UNCITRAL working groups in the review of arbitration rules, transport law and insolvency.  She highlighted the importance of the work being done on arbitration rules, and said the outcome would benefit States.  She hoped that work on transport law would be completed by 2008.

ESMAEIL HAMANEH ( Iran) acknowledged the distinctive contributions of UNCITRAL in the progressive harmonization and unification of the law of international trade.  He said his delegation recognized the key importance of the initiatives taken by the Commission to provide technical assistance and disseminate expertise in that field.  It expressed satisfaction with the work accomplished by the working group on arbitration, and on the progress made on the revision of the UNCITRAL arbitration rules.

He said the working methods of UNCITRAL should be reviewed and promoted in the light of developments in international trade.  It was essential that ways be found to ensure effective participation of the developing countries in the working groups, and in the overall process of harmonization and unification of international trade law.

CLAUDIA VALENZUELA ( El Salvador) said her country had worked on drafts in four of the six working groups of the Commission, and had participated in the Commission’s current session in Vienna.  The work of UNCITRAL was seen as very important for the development of trade, particularly in such areas as electronic commerce and insolvency.  She said El Salvador had ratified international instruments in those areas, including the 2005 Convention on the Use of Electronic Communications in International Contracts. 

Concluding Statement on the UNCITRAL Report

In concluding remarks, UNCITRAL Vice-Chairperson KATHRYN SABO of Canada said the statements she had heard had underscored the important work of the Commission in the area of the rule of law.  She had also heard the messages contained in the statements about the Commission’s working methods.  The substance would be conveyed and considered, perhaps as early as the December resumed session.  All States should participate in the Commission’s work and should make efforts to implement the UNCITRAL model laws and guidelines.

Prevention of Transboundary Harm

Introducing the topic of transboundary harm from hazardous activities and the allocation of loss in the case of such harm, the Committee Chairman ALEXEI TULBURE (Republic of Moldova) recalled the basis for the Committee’s work on the question and said there were two aspects to the item, prevention and liability, both of them emanating from the work of the International Law Commission.  The prevention aspects had been dealt with in the form of 19 draft articles, which had been recommended for elaboration into a convention.  The Commission had just last year completed the liability aspects by adopting draft principles and had requested Governments to respond.  During the present session, the Assembly was to decide on how to proceed on the two aspects of the item based on the Commission’s recommendations.

Statements on Transboundary Harm

SCOTT SHEERAN ( New Zealand), speaking also for Canada and Australia, said there was room for “further evolution of thinking” on the question of how to go forward with the issue.  It was important, for example, not to artificially confine risk situations to those where there was a high probability of significant transboundary harm, or to where there was low.  There could be medium-risk situations in which preventive action was justified, and the course of subsequent action required consideration.

Noting the close relationship between the prevention and liability aspects of the matter that involved the principles on allocation of loss, he said the best course seemed to not move ahead towards a convention without broad and unified support.  The Assembly should, rather, welcome the articles and commend them to the attention of States, without prejudice to their future as a convention.  The Assembly should also encourage States to be guided by the articles in the conduct of their relations, particularly when negotiating agreements.  Similar encouragement should be given to the principles on allocation of loss.

INGER HOLTEN ( Norway) speaking also for the other Nordic countries ( Denmark, Finland, Iceland and Sweden), said the articles on transboundary harm were significant accomplishments in the development of international law.  The Commission’s work provided an important supplement to the responsibility of States, but it did not in any way replace or reduce the responsibility of States under applicable international law.  She said a number of multilateral legal instruments had provisions that envisaged the establishment of further rules on prevention and liability.  The articles and principles also provided valuable guidance outside its specific subject matter related to hazardous activities.  She said the effective implementation of the principles warranted detailed rules and regulations, both nationally and internationally.

PATRICIA GALVAO TELES ( Portugal) said the draft articles and principles were a positive step towards the creation of measures allowing prompt and adequate compensation to victims of transboundary damage.  They would also ensure the minimization of the harm and loss that might result from incidents involving hazardous activities.  She said the structure of the principles on liability should be drafted as a true declaration of principles, and not as “a convention in disguise”.  The draft articles on prevention would also have to be revisited to guarantee a coherent set of principles.  She hoped that one day it would be possible to have a single convention on international liability for injurious consequences arising out of acts not prohibited by international law.

MA XINMIN ( China) said that since the articles contained provisions on two stages involved in transboundary harm, both sets of articles should take the form of a General Assembly resolution or a declaration and its annex.  Then it could be fleshed out by State practice.  When conditions were ripe, consideration could be given to formulating an international convention based on the draft articles or principles. 

DIEGO MALPEDE ( Argentina) said the articles should be elaborated as a convention that contained provisions on norms to ensure that victims of transboundary harm were treated in accordance with the draft principles already set out.  A convention on the matter would provide States with a guide for developing national legislation in the field.  It would also serve as a guide for them in formulating bilateral and multilateral treaties.

JAMES DONOVAN ( United States) said he had made his position clear in the past.  He opposed any efforts to reflect the draft principles on allocation of loss as mandatory or to convert them into a draft convention.  Both documents were designed to encourage national and international action in specific contexts and had not been meant to serve as the basis of a global treaty.  They should not be elaborated into a convention.  The Assembly should take note of work on the topics and encourage States to use the articles and principles in specific situations.

CHESTER BROWN ( United Kingdom) said his delegation was generally satisfied with the overall direction of the Commission’s work and that of the special rapporteurs on the topic.  It welcomed the draft articles on prevention of transboundary harm.  The United Kingdom saw little need for the conclusion of a convention since, in its view, it was bound by a number of sectoral and regional instruments governing issues of harm from hazardous activities.  It was, however, prepared to consider the matter if other States were firmly convinced of the added value of a convention based on the Commission’s work.  On the second part of the Commission’s work on the topic, his delegation agreed that the outcome of that work should be adopted as non-binding draft principles.

NICOLAS GUERRERO ( Mexico) said his delegation accepted the draft principles, a number of which constituted international law.  He said the principles could apply to all members of the international community.  States had a responsibility to ensure that no harm occurred.  His delegation supported the principle of shared responsibility and sustainable development.  The terminology on the allocation of loss was inappropriate.  Strict liability should be applied to the operator.  His delegation was pleased that provision was made for compensation for innocent victims.

NAOBUMI YOKOTA ( Japan) said the obligation of prevention per se had become a part of customary international law, and the provisions in the draft articles offered a good model for implementing obligations.  However, the provisions could not be said to be a codification of well-established customary international law, and it was premature to start elaborating them into a convention.  They should be left in their present form until more practice had accumulated.

Continuing, he said the civil responsibility approach on the principles related to allocation of loss was based on a compromise in a debate that should not be reopened by the discussion of language for a convention.  Also, the relationship between responsibility and liability would open a loophole in the legal machinery for default of obligation, as covered by the principles on internationally wrongful acts and those on hazardous activities not prohibited by international law.

LOGA CHITRA GOVINDASAMY ( Malaysia) noted that the draft principles had not intended to serve as the basis for a possible convention, but had been intended to provide guidance to States regarding compensation for the relevant harm.  She said a number of issues needed to be addressed and clarified, including the level of accountability for consequences of hazardous activities that had potential transboundary effects.  The level of the threshold “significant” harm would also have to be clearly set down, as would a clear method for quantifying damage to the environment.  For the purposes of compensation, was it the value of the natural resources that should be taken into account or the value of the characteristics of the landscape, whether financial or aesthetic? she asked.

MOHABAT KHAN MARRI ( Pakistan), speaking on transboundary harm, said that there were difficulties in the elaboration of a convention on the subject at present.  Issues relating to the scope of the convention remained unsettled.  He said that, in view of the complex nature of the issues involved, ways and means should be found, as a first step, to reach early agreement on the principles on allocation of loss in the case of transboundary harm arising out of hazardous activities.  That could lead to mechanisms to tackle the outcomes of such activities including compensation problems.  He noted that an inter-State dispute resolution mechanism was a must for settlement of claims by individuals and States.

MARIA V. ZABOLOTSKAYA ( Russian Federation) said her delegation considered that both the draft articles and draft principles should be adopted, together or separately, as a declaration.  It hoped the issue of allocation of loss from transboundary harm could be resolved.  There should be criteria for the allocation of loss, without any distinction being made.  On the question of the prevention of harm, there should be a mechanism of equal balance between the State where the harm originated and the State that would suffer from it.

ADRIANA CELIS ( Venezuela) said she supported the elaboration of a convention based on the articles on transboundary harm, in line with the principle of a State’s independence and sovereignty in control of activities on its territory or under its jurisdiction.  The articles articulated by the Commission added to the progressive development of international law and its codification.  The draft principles on allocation of loss needed further clarification.

KONRAD BÜHLER ( Austria) said the time was not yet ripe to proceed towards a convention based on the draft articles and principles under consideration.  About three to five years should pass before the question was taken up again.

EDDY PRATOMO ( Indonesia) said the draft principles brought about awareness of the fragile and vulnerable nature of the environment, which was damaged even by lawful activities, and also awareness of legal remedies for victims.  The draft principles that left States free to design specific liability regimes were commendable.  A working group of the Sixth Committee should be established to clarify difficulties many delegations had highlighted, including the use of the term “operator” in relation to the imposition of liability and the responsibility of multinational corporations conducting hazardous activities in developing countries.

Responsibility of States for Internationally Wrongful Acts

Mr. TULBURE ( Moldova), Chairman of the Committee, introducing the new topic, recalled that the International Law Commission had recommended that an international conference of plenipotentiaries be convened to examine the draft articles on State responsibility for wrongful acts.  This had been noted by the General Assembly and annexed to a resolution for commendation to Governments.  The Secretary-General had prepared two documents for the Committee’s continued consideration of the question -- one on the responses of Governments to the articles, and the other a compilation of decisions of international courts, tribunals and other bodies referring to the articles.

Statements on State Responsibility

ANDREW ROSE ( Australia), speaking also for Canada and New Zealand, said the Assembly should adopt the articles on State responsibility through a resolution as a matter of priority.  Further, the articles should no longer be “draft” but accepted articles. 

ANNA SOTANIEMI ( Finland), speaking also for the other Nordic countries ( Denmark, Iceland, Norway and Sweden) noted the articles had been cited 129 times by international courts, tribunals and other bodies.  She said the reference to the articles as “established rule of international law” or “expression of accepted principles of international law” reflected their impact on international dispute settlement.  The articles were the most authoritative statement on questions of State responsibility.  They reflected widely shared consensus, beyond differences of view on specifics.  A diplomatic conference or negotiations towards a convention could upset a delicate balance, and neither should be undertaken.

ABDELRAZAQ GOUIDER ( Libya), speaking on State responsibility, noted that customary principles were important.  He was happy that references to the articles had been made by international courts and tribunals.  His delegation supported the convening of an international conference to elaborate a convention on the text.  To reject such an approach would be contrary to the principle of harmonization of international law.  Differences should not prevent the elaboration of the convention on State responsibility.

NIRUPAM SEN ( India) thanked the Secretary-General for his useful report.  He also commended the International Law Commission for its work on the topic.  He similarly expressed appreciation for the work of the various special rapporteurs of the Commission on the subject.  He said the draft articles had several merits, most of which had been refashioned.  It would be useful to maintain the careful balance of the text.  He supported State practice, adding that further work needed to be done on the articles.

LUIS S. TAVARES ( Portugal) said his country felt that, after 60 years since the Law Commission embarked on one of its most important topics, the time was ripe for a decision on the future of the draft articles.  The draft articles on State responsibility should constitute the third pillar in the international legal order, after the United Nations Charter, and after the Law of Treaties codified in the 1969 Vienna Convention.  They were all the consequences of internationally wrongful acts.   Portugal considered that the Sixth Committee should carry on the task of adopting the articles as a binding international convention.  To better reflect on the issue, his country believed in the establishment of an ad hoc committee by the current General Assembly with a mandate to discuss the issue further, including the possibility of elaborating the articles as an international convention.

ANET PINO RIVERO ( Cuba) said the rules governing the kind of criminal behaviour covered by the articles must be placed in the context of an internationally binding instrument.  The articles were the basis for launching the subject of State responsibility for internationally wrongful acts onto the road towards that instrument.  There should be no attempt to end negotiations on the issue of the form the articles should take.

ANA CRISTINA RODRÍGUEZ-PINEDA ( Guatemala) said this was the perfect time to reach agreement on the articles.  A number of articles and their provisions had already entered into the international legal arena, and their entry into customary law would be of great benefit in resolving disputes.  A multilateral treaty should be concluded without delay to provide legal certainty, to create a source for case law, to provide legitimacy for the principles enshrined, to give guidance to courts and to strengthen the Charter based on the principle of multilateralism.  It would provide for a conflict-settlement mechanism.  For all those reasons, and because the draft articles had reached a stage of maturity for a treaty, the remaining work to be done should not take three years before the elaboration of a convention began.

ALEJANDRO ALDAY ( Mexico) noted the fact that the text had been referred to by the International Court of Justice.  He said States exercised responsibility over their natural resources.  He said the matter of sustainable development had not been included in the principles, and there had not been a definition about damage to the environment.  On the final form of the text, he said the Mexican position was that the principles had “normative character” and should be legally binding.  The General Assembly could be requested to convene a diplomatic conference with a mandate to elaborate a convention.  A mere declaration would not provide legal certainty.

MA XINMIN ( China) noted that a number of countries had begun to use the draft articles in resolving questions of State responsibility.  The International Court of Justice had also referred to them in some of its rulings.  After stating his delegation’s views on several of the various provisions, he suggested that a resolution of the General Assembly could be adopted with the text annexed to it.  At some future date a convention could be adopted, he said.

THOMAS FITSCHEN ( Germany) said a convention would carry more legal weight than the current text, and that was precisely why that more obligatory character could lead to a large number of States not becoming party, if they objected to one or another individual rule.  A convention signed and ratified by a very small number of States could end up having less practical relevance than the current Assembly resolution that in practice served as an important guide.  The process of successfully contributing to an evolving pattern of State practice, and thereby to solidifying customary international law in the long run, could be cut off if the end result was a controversial convention with only a small number of ratifications.

KONRAD BÜHLER ( Austria) said he favoured the elaboration of a convention on the question of State responsibility, but only if there was a realistic prospect for its wide ratification and acceptance.  With that long-term goal in mind, the realities were evident.  Some States were reluctant to adopt a convention on the question of State responsibility and the articles on diplomatic protection adopted last year, arguing that the ultimate form of both sets of articles should be decided in tandem.  The form of the Commission’s outcome document on the responsibility of international organizations would also have to be revisited in that context.  Therefore, because of further work needed to clarify elements such as the controversial question of dispute settlement, the question should be addressed again in a few years.

GRZEGORZ ZYMAN ( Poland) said the articles on State responsibility for internationally wrongful acts had been one of the most monumental achievements of the International Law Commission.  The topic constituted one of the fundamental pillars of the international legal order, and one of the main normative elements of the rule of law in international relations.  For those reasons, it would not be advisable to undertake the elaboration of a convention now.  Rather, this year’s resolution in the Assembly could not only commend the articles to the attention of Governments, but could also express satisfaction that the articles were extensively the point of reference for international and domestic courts, tribunals and other bodies in their decisions and opinions, as well as in legal writings.  Such a positive wording could be interpreted as a step forward in consolidating the articles in the ongoing process of transforming “soft law” into “hard law”.

ÁLVARO ARÉVALO ( Chile) said the final goal or objective on the future of the draft articles should be a convention; that had been the form of most important instruments, such as the United Nations Convention on the Law of the Sea and the 1969 Vienna Law of Treaties.  He observed that many of the proposed provisions had been invoked in a number of international courts and tribunals, as reported by the Secretary-General.  He suggested that a working group of the Sixth Committee could be set up to examine certain contentious issues.  Concrete steps on the future of the text could be taken later.

LOGA CHITRA GOVINDASAMY ( Malaysia) took note of the information provided by States on their practice relating to the articles, as well as their views about future action on them.  She said her delegation shared the view that no action should be taken on the draft articles at this time, to allow the articles to evolve through State practice and jurisprudence.  Elaborating a convention would open negotiations on the text of the articles, and inevitably weaken the consensus achieved on them.  From the reports of the Secretary-General, there appeared to be a growing recognition of the articles by international courts, tribunals and bodies.  It could therefore be concluded that the articles in their current, non-binding form were sufficient as a guide to States, international courts and tribunals, and international law writers.

When the Sixth Committee met this afternoon, YOO HONG-KEUN ( Republic of Korea) said his delegation attached great importance to the topic of State responsibility which also had an important bearing on such topics as diplomatic protection and the responsibility of international organizations.  He said that it would not, however, be advisable to elaborate a convention on the articles.  His delegation would like to wait to see how State practice relying on the articles evolved.  The topic should remain on the General Assembly’s agenda.

MARIA TELALIAN ( Greece) said the codification and progressive development of the rules on international responsibility of States was the greatest achievement of the International Law Commission so far.  She hoped that the development would provide more focus on the need for States to respect international law and promote international obligations.  She listed positive and certain shortcomings of the text.  The positive elements, such as the strengthening of the notion of international community as a whole, exceeded the shortcomings of the text.  There was no doubt that the draft articles could only take the form of an international convention.

SEMEEN SIDDIQUI ( Pakistan) said the draft articles, if elaborated in the form of a convention, could serve as guidance for State conduct on the issues related to State responsibility.  In principle, her delegation supported the idea of a future convention on the subject.  However, she recommended the establishment by the General Assembly of an ad hoc committee to discuss the issue further and to explore the possibility of its adoption as a convention.

ALBERTO VIRELLA ( Spain) said he supported the idea of a future convention on State responsibility, but it was too soon to move towards that end.  The fragile balance of the agreement that had been reached should not be upset.  The Assembly should revisit the item at an early session, to be decided soon.

Mr. DONOVAN ( United States) said the articles were a useful document that should not be changed in form.  Because he opposed any further work on the articles, he opposed the holding of a conference on the subject.

LUDOVIC BUTEL ( France) said the authority of international law was at stake in the question on State responsibility of internationally wrongful acts.  It was a question that underscored the peace and development of States and work on defining the legal concepts, which were involved reached all the way back to the League of Nations.  The sensitivity and reach of the question called for care in deliberations.  A convention on the matter would be useful in clarifying the concepts within the law.  Also, it should be kept in mind that the Law Commission’s mandate was not to offer guidelines.  Therefore, a conference should be convened to clarify some of the outstanding issues.

POLLY IOANNOU ( Cyprus) said the draft articles had clearly been considered exhaustively and had reached a degree of consolidation that made them impervious to legal criticism.  States only needed the necessary political will to adopt the articles in the form of a legally binding instrument so as to progressively build a system of inter-State relations that operated on clear rules and which held States accountable.  There was no convincing argument at that stage of international relations for any State reluctance to formalize a framework for State responsibility for wrongful acts.  Much in the drafts was not completely satisfactory, such as the obsolete inclusion of archaic notions like countermeasures when the focus should be on forward-looking means of settling disputes.  In conclusion, she said, she supported “in the strongest terms” the holding of a conference of plenipotentiaries without delay to adopt the draft articles, as proposed by the Commission, in the form of a multilateral convention.

Mr. BROWN ( United Kingdom) said the text of the articles in their entirety had not been wholly satisfactory to every State.  Nevertheless, States had accepted them in their current form.  At present, many of the articles reflected an authoritative statement of international law and had been referred to by international courts and tribunals, writers and, more recently, domestic courts.  It was difficult to see what would be gained by the adoption of a convention.

He said the United Kingdom considered there was a real risk that, in moving towards that goal, old issues might be reopened, and a convention with a small number of participants might serve to undermine the current status the articles had achieved.  His delegation considered that it would be sensible and appropriate to take no further action on the articles, leaving them to exert a growing influence through State practice and jurisprudence.

GIUSSEPE NESI ( Italy) said his delegation saw no need to repeat its reservations on some aspects of the articles.  It was of the opinion that the success achieved should be preserved.  He noted the different opinions on the future of the text, adding that some had said that the compromise achieved could be destroyed if the articles were to be opened for negotiations.  With regard to the final form of the articles, he said Italy believed that the General Assembly could, by a resolution, request the Secretary-General to invite States to submit reports on their practice based on the articles.

Mr. YOKOTA ( Japan) said the reports of the Secretary-General showed that the draft articles had already started to play a useful role in actual dispute settlement.  Articles related to attribution of responsibility had proved to be useful as a guideline to show relevant principles.  On the other hand, he said that more controversial provisions such as those on countermeasures and peremptory norms had not yet been supported by any decisions of international courts.  On the question of their future form, Japan believed that there should be a delay of several years for experience of further State practice, as well as that of international courts, to be accumulated before addressing the question.

Ms. ZABOLOSTKAYA ( Russian Federation) praised the Secretary-General’s reports for their compilation of decisions of international courts, tribunals and other bodies.  She said her delegation favoured the elaboration of the draft articles into a convention.  The General Assembly decision to defer action on the future of the draft articles was no reason for further postponement.  Dealing with some of the provisions, she said that countermeasures constituted an important aspect of implementation of State responsibility.  She also expressed doubts about the decision of States to invoke extreme measures when their interests were affected.  Nevertheless, she said, there were a number of positive aspects.  The approach of the International Law Commission had been successful in the production of a balanced document.  In her view, further thought should be given to the consequences of serious violations of international law.

RETA ALEMU NEGA ( Ethiopia) said the question of State responsibility for international wrongful acts depended on cooperation and information-sharing between States.  It was now time to create a binding instrument to address the legal aspects and principles involved.

IFEYINWA ANGELA NWORGU ( Nigeria) said the draft articles were an important addition to the framework of international law, and they had fast become authoritative references on questions of State responsibility.  The many references to the articles in judgements of national and international courts and tribunals confirmed that position.  As to form, there was no urgency to conclude a convention.  The articles were already in use as guides.  There was no need to take the chance of watering down the principles in compromise.  Rather, more time should pass before again considering what form the articles should take.

Ms. CELIS ( Venezuela) said responsibility of States for wrongful acts should be elaborated into a binding instrument.  For now, the Assembly should take note of the articles and commend them to Governments.  A high-level conference should be convened later to address outstanding issues.

ALLIEU KANU ( Sierra Leone) said he could live with the compromise text on State responsibility for internationally wrongful acts.  It would not be helpful, however, to negotiate the articles as a convention.  Therefore, three points merited emphasis.  First, States could not rely on domestic law to derogate from responsibility and international obligations.  Next, countermeasures must be applied in a way that ensured flexibility, effectiveness and prevention of abuses, particularly when employed against smaller States.  And finally, unilateral determination of legitimacy of countermeasures created a concern that called for greater clarity and uniformity.

Action on Draft Resolutions

The Committee took up the draft resolution on observer status for the Regional Centre on Small Arms and Light Weapons in the Great Lakes Region, the Horn of Africa and Bordering States in the General Assembly (document A/C.6/62/L.2/Rev.1) and approved it without a vote.

The draft on observer status for the Italian-American Institute in the General Assembly (document A/C.6/62/L.5) was taken up and approved without a vote.

Next to be taken up was the draft resolution on observer status for the Energy Charter Conference in the General Assembly (documents A/c.6/62/L.3 and Corr.1).  The draft was approved without a vote.

The resolution on observer status for the Eurasian Development Bank in the General Assembly (document A/C.6/62/L.4) was then taken up and approved without a vote.

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For information media • not an official record