Legal Committee Delegates Differ on Applying Rules for State Responsibility: Convention Needed, or Customary Law Adequate?
|Department of Public Information • News and Media Division • New York|
Sixty-fifth General Assembly
15th Meeting (AM)
Legal Committee Delegates Differ on Applying Rules for State
Responsibility: Convention Needed, or Customary Law Adequate?
Whether an international convention was — or was not — needed on the issue of State responsibility for internationally wrongful acts was the crux of deliberation today as the Sixth Committee met to discuss the annual report of the Secretary-General on the subject.
The delegate of the United Kingdom was among those who said a convention was not necessary. The right course of action on the relative articles from the International Law Commission, he said, was for the General Assembly to determine that they were increasingly entering into the fabric of international law through State practice, judicial and arbitral decisions and writings of publicists. So he argued that the articles should be left to continue to “crystallize and develop organically.”
Taking a different view, the delegate of Cuba said a convention might open up issues such as the obligatory nature of the articles, which were often part of national, ancestral or case law. Without the convention a number of States would avoid their responsibilities. A convention would guarantee such regulations and give judges greater power in dispensing justice.
Germany’s representative said that international and German courts had referred their decisions to selected International Law Commission draft articles on State responsibility, and these articles were legally binding statements of customary international law. A convention might jeopardize the existing consensus regarding the binding nature of the draft articles.
Portugal’s delegate said that after 60 years of deliberation, it was now time to take necessary action and incorporate the articles into a “hard-law instrument”. The representative of Greece said the legal value of the articles was huge, contributing to the development, respect and compliance with international law and peremptory norms and violations. With a legally binding text, the principles would become more powerful; she called for a high level conference to adopt the articles as a convention.
Speaking also for Australia and New Zealand, Canada’s representative said that while the question of what form the articles should take was still under consideration, the international community, through its courts, tribunals and other bodies, had referred to the text and commentary in formulating their decisions. Rather than a convention, a resolution should be adopted, with the text of the articles annexed to it.
Also speaking in the debate today were Chile (for the Rio Group of countries) and Finland (for the Nordic Countries) as well as the representatives of Malaysia, Libya, Russian Federation, Viet Nam, United States, Venezuela, Iran, and India.
The Sixth Committee will meet again at 10:00 a.m. on Wednesday, 20 October, to take up the topic of diplomatic protection.
The Sixth Committee (Legal) met today to begin its consideration of a report of the Secretary-General on the responsibility of States for internationally wrongful acts (document A/65/76). The report reviews information received from the Czech Republic, Germany and Mexico on decisions of international courts, tribunals and other bodies between 1 February 2007 and 31 January 2010. Included in the present compilation was an analysis and reference of cases found in the decisions of the International Court of Justice (ICC); the World Trade Organization (WTO) Appellate Body; international arbitral tribunals; panels established under General Agreement on Tariffs and Trade and the World Trade Organization; the Special Court for Sierra Leone; the European Court of Human Rights; the Inter-American Court of Human Rights; and the Caribbean Court of Justice.
Also before the Committee is a report of the Secretary-General on the responsibility of States for internationally wrongful acts (document A/65/96 and Add.1) which reviews comments and information received from Governments. Further examination was requested within the framework of a working group of the Committee as to “the question of a convention on responsibility of States for internationally wrongful acts or other appropriate action on the basis of the articles.”
As of May this year, the Secretary-General received written comments from Brazil, the Czech Republic, Finland (on behalf of the Nordic countries), France, Germany, Lithuania, Mexico, the Netherlands, Portugal, Qatar, United Kingdom, and United States. In September the Secretary-General received written comments from El Salvador.
ALEJANDRA QUEZADA (Chile), speaking for the Rio Group of countries, said the subject of the responsibility of States for internationally wrongful acts was a major component in relations between States and she called for the International Law Commission’s draft Articles on this issue to be incorporated into a treaty. Such a treaty would address an “existing imbalance between the codification of primary and secondary rules”, she stated. The adoption of such a treaty would contribute to the stabilization and certainty of the rules on State responsibility.
Although the Articles were not ideal for each and every State, she said, they represented the “best possible result as a whole” for all States, and offered a well-conceived and balanced set of secondary rules. These rules had already demonstrated their value as a “powerful consolidating factor” within the international framework. In this regard, the International Law Commission articles were whole, and should not be reopened for negotiations. Stressing that this was not just because such articles represented a “delicate compromise” resulting after forty years of effort, but rather, she said that they reflected the balance between what was already accepted and “warranted steps” toward the development of international law.
ARTO HAAPEA ( Finland) noted, for the Nordic Countries, that 25 references had been made to the articles and their commentaries by courts, tribunals and other bodies since their adoption in 2005. The articles were regularly invoked as the basis for decisions, as established rules or as part of customary international law, which reflected the strong and authoritative impact of the articles on international dispute settlement. The articles were in the strongest possible position as an annex to a resolution. They reflected a widely shared consensus despite a difference of views on details. Holding a diplomatic conference aimed at producing a convention could jeopardize the delicate balance built into the articles. He said it would not be advisable to embark on negotiations for a convention on State responsibility for internationally wrongful acts.
FARHANI AHMAD ( Malaysia) said she shared the view that the articles should not be developed into a convention at the moment. That move could unravel the fragile balance in the text and it could lead to non-universality of acceptance, which would defeat its purpose. As it was, the articles had continued in the process of naturally developing and contributing to the fabric of international law through its influences on courts, tribunals and State practice. Attempting to negotiate a convention was unnecessary and undesirable at this point.
She said the articles had shown themselves to be useful in their current non-binding form as a guide for States, courts and tribunals. More in-depth consideration was needed before a convention could be negotiated. Comprehensive as the articles were, they could only be viewed as guidelines. The Secretariat should conduct a study on the practice of international courts and tribunals. The Secretary-General’s report indicated that the articles were viewed as customary international law but an in-depth study on consistencies should be conducted without prejudice toward any court. Wider experience with the application of the articles in practice should be collected before further consideration.
CHRISTOPH RETZLAFF ( Germany) said that his country had not changed its position on this issue, as reflected in the Secretary-General’s report. International and German courts referred their decisions to selected International Law Commission draft articles on State responsibility, and these articles were legally binding statements of customary international law. Therefore, their status was secure under both German and international case law. A binding convention, he stated in conclusion, should not be drawn up, as it might jeopardize the existing consensus regarding the binding nature of the draft articles.
MATEUS KOWALSKI ( Portugal) stressed that, after 60 years, the work on the draft articles had come to a “crucial moment”, and it was now time to take necessary action. To this end, his country believed it was appropriate for the draft articles to be incorporated into a “hard-law instrument”. Such a convention would contribute to respect for international law and peace and stability in international relations the concerns of States’ should be to establish the legal consequences of the internationally wrongful acts.
NICK MINOGUE (United Kingdom) said the right course of action on the articles was for the Assembly to reiterate its commendation, note that the articles were increasingly entering into the fabric of international law through state practice, judicial and arbitral decisions and the writings of publicists, and then to resolve that the appropriate course of action was to leave the articles to continue to crystallize and develop organically. That was because the articles did not reflect a settled view of customary international law and there remained elements that were both disputed and unclear. Meanwhile, a large and growing body of practice and judicial decisions was increasingly giving clarity to individual articles and their meaning. Were the Assembly to decide now that the articles should be turned into a convention, the increasingly settled character of the articles could be called into question.
He said there was more agreement on some of the articles than on others. The provisions must be allowed to develop organically as a reference point of the law, even if not always as a definitive statement. If questions arose about individual articles, the standard to be applied was where the article stood as a reflection of customary law. The utility of the articles and the commentaries resided in the assistance provided to further inquiry and not in the presumptive application of the provisions as if they were binding treaty provisions. Once that step was established, questions of interpretation and application could be addressed.
He said there were many elements to be more carefully considered, including questions of invocation of responsibility, attribution, assistance and circumstances precluding wrongfulness. A number of articles entailed interpretative uncertainties, as in the articles on attribution, to which now could be added additional interpretative challenges, such as situations involving complex composite acts in which officials of one State acted on the instruction or authority of another. At this stage, States should be requested to submit information on practice, which then should be published for further consideration of the elements involved.
ABDELRAZAG EL MURTADI ( Libya) said the establishment of a working group on the question of State responsibility should be considered so that the process could move to a new phase enabling the work of the International Law Commission to culminate in a binding instrument. More than 60 years had passed since the topic had been chosen for codification and 50 years of work had gone into the topic. Numerous State comments had been submitted and the differences of view on the articles amounted to no more than details. Negotiations toward the adoption of the articles as a convention should begin with a view to considering the responsibility of States as the sum of their international duties and rights. A high level international conference should be convened since numerous international legal bodies had expressed the view that the articles were considered to be customary law or a codification thereof.
He said that working toward a convention should not be construed negatively with suggestions, that it would threaten the delicate balance of the text or that it would discourage universal acceptance. The reluctance to codify the principles on such an important question was inexplicable when less important issues were rendered in that context.
NATALIA SILKINA ( Russian Federation) said the draft articles were actively being applied in courts as normal customary law. Although there were some articles that required additional work, she said they were balanced and offered a significant basis for international tribunals and courts. She considered the articles to be a good basis for further work. As the aim of the International Law Commission was to assist toward progressive development and codification of international law and as the General Assembly had drawn attention to Governments on this issue several times over the past couple of years, she believed that drafting a convention would be very important. If adopted “it would take its rightful place among international documents, including the Vienna Convention,” and she called for a conference to be held on this matter.
PHAN DUY HAO (Viet Nam) noted that after nine years since the International Law Commission had adopted the draft articles, States still held different views on various details, including, among others, the concept and application of countermeasures and the invocation of State responsibility by States that were not the injured party. Given the significance of the topic of State responsibility under international law, he said there was a need to conclude a binding instrument. The experiences of the conclusion of the Vienna Convention and the Convention on the Law of the Sea, to name just two, suggested that it would be a good idea to convene an international conference to examine the draft toward concluding a treaty on State responsibility.
DARIN JOHNSON ( United States) said the draft articles were most valuable in their present form and the further action was neither necessary nor desirable. There was little to be gained in terms of additional authority or clarity from negotiating a convention since the articles already had tremendous influence and importance to international courts, tribunals, States and other international actors. They were a useful guide on what constituted the law or how the law might be progressively developed. Further, the process of negotiating a convention could risk undermining the Commission’s work, particularly if the elaborated convention deviated from existing rules or did not enjoy widespread acceptance. It was better to leave the articles as a guide for the continued development of the customary international law on State responsibility.
JORGE VALERO ( Venezuela) said the draft articles should result in a legally binding instrument that would become one of the pillars of contemporary international law. In the last five years, numerous references had been made to the articles by judicial and legal bodies such as international courts and tribunals. The references had related to important legal questions such as the principles related to restitution, which was the return of conditions prior to the commission of the internationally wrongful act. The draft articles provided a solid foundation for technical legal issues while political elements would have to be addressed further. A working group should be established to elaborate the articles into a convention based on the articles in their current form.
LESTER DELGADO SÁNCHEZ ( Cuba) said that his country placed great importance toward the codification of international law and supported the work toward a draft convention. He observed that the Secretary-General’s report reflected the reticence of some States on a convention. This might open up issues such as the obligatory nature of the articles, and there was a risk some States would not ratify such a convention, therefore allowing the current situation to continue. However, he added, national and international courts did not always reflect the majority of States’ positions on these articles. Furthermore, the draft articles were often part of national, ancestral or case law. Postponing the convention, he said, would mean that a number of States would avoid their responsibilities, since there was an absence of clear rules on the question of State responsibility. A convention would guarantee such regulations and give judges greater power in the dispensing of justice.
MOHAMMAD KHAZAEE ( Iran) noted the 46 years of the International Law Commission’s efforts on this issue and said the draft articles reflected a “wealth of intellect and deliberate consideration”, and to that end the final form of the articles should reflect “this high quality of work”. He said the many provisions within the draft Articles were reflected in customary international law as well as consistent with a number of international “case-law” decisions. Since State responsibility was the backbone of international law and a cornerstone of the rule of international law, the rules should be clear. An elaborated convention on this issue would, therefore, contribute to an enhanced international legal framework. Emphasizing that the draft articles from the International Law Commission were the best basis for negotiating an instrument on this issue, he called for an international conference to adopt such an instrument.
MARIA THALIAN ( Greece) said the legal value of the articles was enormous, in that they contributed to the development of international law with regard to issues such as peremptory norms and violations. The articles covered a range issues such as damage inflicted relative to States and State responsibility. The articles enjoyed widespread acceptance and were an important source for the reference of international bodies, including courts and tribunals. The body of articles on State responsibility was so well respected that appreciation of their usefulness contributed to respect for international law overall and to compliance with international law. Elaborating the articles into a legally binding text would render them more powerful as well as compulsory. The text, however, should remain unchanged. She would support a high level conference to adopt the articles as a convention.
SABA ZARGHAMI ( Canada), speaking also for Australia and New Zealand, said the question of the form the articles should take was not one that could be dismissed lightly. The product of 50 years of work by the International Law Commission, the articles on state responsibility addressed one of the most complex and challenging areas in international law. And while the question of their form was still under consideration, the international community through its courts, tribunals and other bodies had referred to the text and commentary in formulating their decisions.
She said it would not be helpful to try and negotiate the articles into a convention. That course of action could disturb the delicate balance of the text and it could weaken their current force and practical authority, if wide adherence were not achieved. Rather, a resolution should endorse the articles, the text of which should be annexed to the resolution.
BAJU BAN RIYAN ( India) said the articles on State responsibility represented a delicate balance achieved on the basis of many compromises by States. They called for careful analysis in light of existing and evolving State practice. This was especially the case with respect to the development of principles such as that of universal jurisdiction and punishment for grave breaches of obligations under peremptory norms of international law such as genocide, aggression, piracy and slavery. Some rules under the articles were the subject of more specialized treaty regimes not containing elements reflected in the State-responsibility articles.
He said most of the articles reflected customary international law and any effort to deal only with secondary aspects arising out of a breach of international obligations would disturb the fragile consensus on a very useful topic. Further, the complexity of the issues involved could make States reluctant to adopt the articles as binding rules. Therefore, no further action was required on the topic at this stage.
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