ACTION ON STATE RESPONSIBILITY FOR WRONGFUL ACTS
United States Urges Caution; Others Commend Progress Made
NEW YORK, 1 November (UN Headquarters) -- Any attempt to adopt a binding instrument on State responsibility would not be advisable, the representative of the United States told the Sixth Committee (Legal) this morning, and urged more time for careful study of the draft articles on the topic adopted by the International Law Commission.
The Committee, at two meetings today, examined the draft articles on Responsibility of States for Internationally Wrongful Acts in the context of its deliberations on the Commission’s report on the work of its 2001 session. The split session took place in Geneva from 23 April to 1 June and 2 July to 10 August.
The United States representative said the revised draft articles and the commentaries on it represented a significant contribution, but Governments would want more time to study them more carefully because of their importance and volume. The General Assembly, at its current session, should therefore thank the Commission for completing its work on the matter, note the receipt of the draft articles and commentaries and ask for their study by Governments, he said.
The draft articles codified matters of an extreme practical importance such as the attribution of wrongful conduct to a State at a time when the acts of non-State entities had significant impact at the international level, and the question of reparation for injury, the representative of Portugal said. The real problem with regard to State responsibility was, and would be, that there was no special international body competent to determine that a violation of international law had occurred.
The representatives of Sierra Leone, Mexico, Greece, India, Russian Federation, Mongolia, Czech Republic and Cameroon also spoke at the morning session.
Speaking this afternoon, the representative of Ireland saw the draft articles as part of a continuing process, rather than an end. He said Member States should now reflect upon the draft articles, incorporating the progressive elements in their own practice as they deemed appropriate, rather than proceeding in the direction of codification.
The representative of the Ukraine said it would be premature to discuss the issue of convening a conference to consider the adoption of a convention on the topic at present. States should be given time to examine in-depth the draft articles and for international practice to develop. The subject of State responsibility should therefore be on next year’s General Assembly agenda taking into account commentaries made by all interested parties.
Also speaking this afternoon were the representatives of Chile, Hungary, Jordan, Thailand, Venezuela, Argentina and Croatia.
In another action this morning, the Sixth Committee approved without a vote a draft resolution by which the Ad Hoc Committee on Jurisdictional Immunities of States and Their Property will meet from 4 to 15 February, 2002 at the instance of the General Assembly. Further, by the draft, the Assembly would ask the ad hoc committee to report during the Assembly’s fifty-seventh session, deciding to include on its agenda the item entitled "Convention on jurisdictional immunities of States and their Property".
The Sixth Committee held a substantive discussion on the work of the ad hoc committee at its last session in 2000. The representative of the United Kingdom made a statement after action on the draft.
The Committee Secretary, Vaclav Mikulka, reading out the programme budget implications of the decision, indicated that if the General Assembly adopted the draft resolution, no additional appropriation would be required during the 2002-2003 biennium.
The Committee will meet again at 10 a.m. tomorrow, Friday, 2 November, to continue considering the Report of the International Law Commission. Also tomorrow, the Chairman of the International Law Commission will introduce Chapter V of the Commission’s report on International Liability for Injurious Consequences arising out of acts not prohibited by international law (Prevention of Transboundary Harm from Hazardous Activities).
The Sixth Committee (Legal) met this morning to continue its consideration of the report of the International Law Commission on its 2001 session (documents 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 GA/L/3188 of 29 October 2001.)
Also this morning, the Committee was expected to act on a draft resolution (document A/C.6/56/L.7) by which the General Assembly would decide that the ad hoc Committee on Jurisdictional Immunities of States and Their Property should meet from 4 to 15 February 2002. The draft text would have the ad hoc Committee report to the Assembly at its fifty-seventh session next year on the outcome of its work.
The ad hoc committee, which is open to participation by States members of the specialized agencies, is elaborating an instrument based on draft articles on jurisdictional immunities of States and their property adopted by the International Law Commission at its forty-third session in 1991. The ad hoc committee is also taking into account the discussions on the topic by the open-ended working group of the Sixth Committee.
ALLIEU KANU (Sierra Leone) said the draft articles on State responsibility represented a comprehensive and balanced text but certain provisions required further attention. The Commission had tried to introduce a qualitative difference between "ordinary" breaches and breaches of norms that had a fundamental character and from which no derogation was permitted. The compromise language in the draft articles seemed to address some concerns about making a distinction but did not go far enough in preventing the assessment of seriousness from being an arbitrary determination.
Continuing, he enumerated various articles and made specific comments. For example, he said, the wording, "international community as a whole" had been kept in a number of articles; that was a departure from the wording of the Vienna Convention and was perhaps not appropriate. Further, the language adopted should be without prejudice to rights of individuals or entities derived from the responsibility of a State. On the other hand, the emphasis given to the principle of non-relevance of domestic law was welcome, in that it reflected a well-established norm and constituted an incentive for States to bring domestic law into conformity with international standards.
On the question of countermeasures, he continued, the articles went a long way to clearing up the problem of ensuring a proper balance between the requirements of flexibility and of effectiveness, and with the prevention of abuses, especially when employed against smaller or weaker States. Nevertheless, the unilateral determination of the legitimacy of countermeasures continued to be of concern. Many of the articles on countermeasures needed improvement.
He said the Assembly should adopt a resolution and attach the draft articles on State responsibility in an annex. At a later stage, a convention should be negotiated through an international conference of plenipotentiary.
JUAN MANUEL GOMEZ ROBLEDO (Mexico) said the Commission's work on the elaboration of the articles on State responsibility for internationally wrongful acts was the definitive work on the issue, and was clear on a complex matter. The draft articles were inseparable from the commentaries and would be invaluable for States to evaluate the provisions. However, though the draft articles were well balanced and struck a compromise between very disparate positions, there were elements that gave rise to uncertainty.
The articles contained no provisions for a mechanism concerning the settlement of disputes. The explanation had been put forward that such a provision was required only when dealing with a treaty type of instrument. However, since there were precedents in making such provision, the argument had no basis. At the same time, many important improvements had been made in the draft; dropping some elements and changing others had clarified the language and concepts.
The articles on grave violations, which referred to complex areas not yet regulated by international law, made it difficult to convincingly make the case that all States had an obligation to participate in ending internationally wrongful acts. The article as it stood opened the way for abuses and conflicts. The wording and the articles on obligations to the international community as a whole left open the element of subjectivity. The section on countermeasures overall strengthened the countermeasures, but again left too many elements unclear. The provision allowing adoption of urgent countermeasures, for example, allowed injured States to take action without the requiring admission on the part of the offending State. That provided too much room for the risk of allowing abuses.
In short, he said, a valuable task had been accomplished with the completion of the draft articles. A convention was the only possible form in which to adopt a body of work that had taken 50 years to accomplish. Mexico would support any next steps with regard to the articles as long as they led to a convention. During this session, the Assembly should receive them with thanks and make note that the item on State responsibility should be included in the agenda of the next General Assembly session.
CONSTANTIN P. ECONOMIDES (Greece) said the International Law Commission’s work on the draft articles was a most important development in international law, even more than the Vienna Law of Treaties and the United Nations Convention on the Law of the Sea. The Commission’s draft articles on State responsibility had filled enormous gaps in international law.
Analysing the text on responsibility of States for internationally wrongful acts, he reviewed the elements of what constituted that act and countermeasures. He said retention of the concept of "international community as a whole", with reference to breach of obligation owed to it, was positive and the result of compromises. The draft contained a number of important compromises. On the whole, it was a positive achievement. It had been drafted very carefully, and would render great service to States and the international community. It deserved the form of a convention, preferably through a conference of plenipotentiaries.
P.S. RAO (India) said the draft articles had now been trimmed, and the concepts involved were less complicated for the context of application. Some of the most difficult articles had been refashioned, and showed sensitivity to the needs of people in States in difficult circumstances. They dealt with the most complicated and controversial subjects of international law, and they no longer provided for the concept of State crimes. That deletion had not weakened the articles, since the concept of "serious breach" had been brought in, distinguishing those crimes that involved a gross or systematic failure by States to fulfil obligations on aspects of international humanitarian law that had acquired the status of a peremptory norm. The commentary to the articles further illustrated those types of breaches.
He noted the omission of some provisions and the strengthening of others, expressing satisfaction that the issue of the plurality of injured States was now separately covered. On countermeasures, he noted that the relevant articles stated the objective of such measures was to induce States to comply with obligations rather than to punish or seek vengeance. The articles also set out appropriate limitations and stipulations, such as the provision that countermeasures be proportional to the injury suffered, taking into account the gravity of the wrongful act and the rights in question.
He said it was clear that all the draft articles addressed only secondary rules of State responsibility, which would come into play only when an internationally wrongful act was committed, as defined by a primary rule. International law was still striving to achieve the necessary universality at that level. Progress in that arena called for significant progress in such areas as the right to development and the establishment of a more universally accepted system of international criminal justice.
He said that, given the complexity of the issues covered and the delicate balance achieved in the total package, the Assembly should express its appreciation to the International Law Commission and should take note of the draft articles. After sufficient time for study and reflection, States should consider adopting them in a suitable form.
DMITRY LOBACH (Russian Federation) said the draft articles on State responsibility were balanced and fully took account of State practice and existing legal doctrines. The Russian Federation welcomed the compromises the Commission was able to achieve on the text.
He said his country had consistently supported the inclusion of the provisions on countermeasures in the text. Countermeasures were, in practice, the most effective means to ensure that a State made reparations for wrongful acts it had committed.
He welcomed the inclusion of the new article on compliance with peremptory norms. He noted that no reference was made to the issue of States using need for humanitarian intervention as a pretext to commit wrongful act.
The Russian Federation favoured the adoption of the draft articles as a universal convention like the 1969 Vienna Convention on the Law of Treaties, but he noted the objective difficulties that proposal could encounter. Russia, therefore, supported the recommendations of the Commission that the text be noted by the General Assembly in the form of a resolution to which the articles would be annexed. It would be the first step towards the conclusion of an international convention on the subject, he said.
JARGALSAIKHANY ENKHSAIKHAN (Mongolia) said the draft articles on State responsibility could have practical implications for international relations and international legality, as well as helping to strengthen international peace and security and the fight against international terrorism. He hoped the articles would become more than customary international law and form an important and indispensable part of international norms.
His delegation supported the gist of the article of the draft concerning invocation of responsibility of a State other than an injured State. It agreed that a State other than an injured State should be allowed to invoke the responsibility of another State where it had breached an obligation owed to a group of States or to the international community as a whole. It also agreed that non-injured States entitled to invoke the responsibility of a State might demand from the responsible State cessation of the wrongful act, as well as assurances of non-repetition and reparation in the interest of the injured State or other beneficiary.
Mongolia agreed that countermeasures could be a legitimate means employed by the injured State to compel cessation of the wrongful act. It was also necessary for abuse of countermeasures to be guarded against. It agreed to the General Assembly taking note of the draft articles in a resolution to which the text was annexed. It also supported the convening by the Assembly, at a later stage, of an international conference of plenipotentiaries to examine the draft articles to conclude a convention on the articles.
MIROSLAV PETRU (Czech Republic) said that, while the issue of State responsibility was among the most important in international law, the document was over 300 pages long and contained 59 draft articles, along with commentaries, that deserved further reflection and study. The final draft was a significant improvement over last year’s version, more comprehensive and rigorous. Substantively, the provisions on countermeasures were more balanced. However, some concerns remained.
Despite the detailed commentaries, the articles on serious breaches of peremptory norms and those on breaches of obligations towards the international community were not sufficiently clear. They did not distinguish between the two kinds of breaches; the purpose for using the difference in terminology was unclear. Since the final set of draft articles did not address the issue of who was to decide whether a breach of a peremptory norm was of a serious nature or not, controversies were likely to occur.
The outcome of the Commission’s work had been long awaited, he said. The disposition of the draft text should follow the procedure the General Assembly had used in 1999, in connection with the articles on nationality of natural persons in relation to the succession of States. The General Assembly should take note of the draft articles on State responsibility and should welcome them at the present session.
MARTIN BELINGA EBOUTOU (Cameroon), recalling the 50-year history of the issue of State responsibility in the hands of the International Law Commission, said the articles on the subject contained in the reports were a cornerstone of international law and came at a time when the international community was facing growing violations of an international nature. The draft contained progressive elements of international law, but some raised concerns.
The articles on countermeasures presented an instrument that only a few States could use, notably, the wealthy ones, he said. There were also problems with the language in that regard. Furthermore, the reference to urgent countermeasures was an important inclusion in the articles since they were an increasingly important part of international law. But some important language that would strengthen, clarify and safeguard the use of such measures had been eliminated since the previous draft. Also, more consideration should be reflected concerning the distinction between two types of measures, those used by the United Nations and those used by States.
The argument put forward for omitting provisions on settlement of disputes had not been convincing, he continued. There would, undoubtedly, be cases in which a third party would have to enter into a situation in which one State had committed a wrongful act against another. The third party would have to determine the degree of injury and decide on countermeasures. Many States had not subscribed to the optional clause that would put them within the mandatory jurisdiction of the International Criminal Court.
In light of those concerns, he said, the articles should be adopted and their final form should be a convention. A resolution adopting the draft articles now should name the timeframe in which a diplomatic event would be held to elaborate the convention.
ANTONIO VILHENA DE CARVALHO (Portugal) said the draft articles codified matters of an extreme practical importance, such as the attribution of wrongful conduct to a State at a time when the acts of non-State entities had significant impact on the international level, and the question of reparation for injury.
The real problem with regard to State responsibility was, and would be, that there was no special international body competent to determine that a violation of international law had occurred. Hence, the importance of considering seriously the inclusion of provisions on settlement of disputes in an eventual draft convention on State responsibility.
Commenting on the Commission’s work on International Liability for Injurious Acts Not Prohibited by International Law, he said his country welcomed any legal developments that might increase commitment to preventive action in order to avoid harm, in particular, when such harm involved environmental damages. While the draft articles dealt in a satisfactory manner with the question of prevention, Portugal would have liked to see the inclusion of matters such as the question of harm caused to areas beyond national jurisdiction, as well as an explicit reference to the precautionary principle. Portugal would prefer the final outcome of the codification work on the topic to deal in an integrated manner with the questions of prevention and liability.
WILLIAM H. TAFT (United States) said the revised draft articles on Responsibility of States for internationally wrongful acts and the commentaries on it represented a significant contribution for which all participants in the process, past and present, should be commended. The United States did not believe it would be advisable to attempt to adopt a binding instrument on the topic. Governments would want more time to study carefully the draft articles and the commentaries, because of their importance and volume. At its current session, the General Assembly should, therefore, thank the Commission for completing its work on the matter, note the receipt of the draft articles and commentaries, and ask that governments study them carefully.
He said the United States welcomed a number of developments in the draft articles over the past year. It was pleased with the Commission’s revision of certain articles to reflect more accurately existing customary international law. Despite the substantial improvements made by the Commission to the text of the articles and through the commentaries, the United States remained concerned that some provisions continued to deviate from customary international law and State practice in unhelpful ways. In addition, there was some problematic language in some of the commentaries. The United States continued to be concerned with the Commission’s treatment of countermeasures in the articles.
He also commented on the Commission’s work on international liability for injurious consequences arising out of acts not prohibited by international law, diplomatic protection, reservations to treaties and unilateral acts of States. On the text on international liability, he said the Commission’s articles represented a notable attempt progressively to develop international law on the topic, rather than to codify existing customary international law. The view of the United States was that binding agreements in that area of law were better done on a regional or topical basis, rather than at the global level.
On diplomatic protection, he said the United States was reviewing questions raised by the Commission regarding exceptions to the continuous nationality rule, and regarding State practice on the extension of diplomatic protection to corporations and their shareholders.
Action on Draft
The Committee took up the draft resolution on the Convention on Jurisdictional Immunities of States and Their Property (document A/C.6/56/L.7).
By that draft, the General Assembly would decide that the Ad Hoc Committee on Jurisdictional Immunities of States and Their Property would meet from 4 to 15 February 2002. It would also request the Secretary-General to make available to the Ad Hoc Committee comments, relevant to its work, submitted by States. The Assembly would also request the Ad Hoc Committee to report at the Assembly’s fifty-seventh session next year, deciding to include the item of the Convention on its agenda for that session.
The Committee Chairman, PIERRE LELONG (Haiti), recalled that the Committee had held a substantive discussion on the matter during its last session in 2000.
Further consideration of the substantive issues would take place when the Ad Hoc Committee met, which had been set up in December of that year.
The Committee Secretary, VACLAV MIKULKA, read out the programme budget implications, which indicated that if the General Assembly adopted the draft, no additional appropriation would be required during the 2002-2003 biennium.
The Committee then approved the draft without a vote.
In explanation of the vote after the vote, the representative of the United Kingdom said she would go along with the consensus, but she had reservations about the wording of the title.
The meeting was adjourned.
The Committee met again this afternoon to continue hearing views on the report of the International Law Commission on its 2001 session, with particular reference to draft articles on State responsibility that the Commission adopted at that session.
ALEJANDRA QUEZADA (Chile) supported the new title given to the draft articles -- "draft articles on the Responsibility of States for internationally wrongful acts". That would distinguish the topic from a State’s domestic responsibility, she said. She welcomed the concept of "international community as a whole" in reference to breaches of international obligation owed. She did not agree that violations of obligations must be serious before responsibility was invoked. Any violation of international responsibility should be considered as serious.
She agreed with the Commission’s decision not to include provisions on dispute settlement in the draft articles. The issue could be considered at an international conference convened in the future by the General Assembly to examine the draft articles. She also agreed with the Commission’s recommendation that the Assembly take note of the articles in a resolution to which it would be annexed. She said States should study the articles and that the question should remain on the General Assembly’s agenda at its next session.
ÁRPÁD PRANDLER (Hungary) said his delegation favoured adopting an Assembly resolution which would take note with appreciation of the draft articles and recommend them to the attention of States. While he did not exclude the possibility of convening a diplomatic conference to examine draft articles and conclude a convention on them, he did believe that the issue should be discussed further after a few more years. "We are against a premature convening of the conference, because it could result in the unravelling of the compromise package of the draft articles", he said.
He said the real question was whether those draft articles as a whole represented a minimum level of acceptance. Their provisions reflected partly the generally accepted norms of international customary law, and could also be regarded as emerging rules of the progressive development of international law.
He recalled that last year his delegation came out strongly for a compulsory system of dispute settlement in the context of draft articles. At that time, the Commission and the Sixth Committee still envisaged the elaboration and adoption of a convention on that subject matter. This year, however, for reasons accepted by the overwhelming majority of delegations, the Commission and the Committee did not wish to proceed with the convening of a diplomatic conference.
He said Hungary was convinced that there was a plethora of methods for the peaceful settlement of disputes starting with the Charter, right up to the provisions of the Statute of the International Court of Justice. The issue of the regime for the settlement of international disputes in the context of the draft articles was not the establishment of a special régime, but one of the political will of States, namely, whether they were ready to accept the existing methods and machinery for the peaceful settlement of disputes.
MAHMOUD D. HMOUD (Jordan) said codification of the legal regime on countermeasures was an important safeguard against political and arbitrary countermeasures which may undermine the principle of sovereign equality. On the other hand, the regime may secure compliance with international obligations and act as a deterrent to wrongful doing.
On the issue of dispute settlement, he said Jordan supported the compromise reached in the International Law Commission to leave it to the General Assembly to consider the issue when dealing with the form of the draft articles. The draft articles were simple in form, yet complicated in nature. As a result, the dispute settlement mechanism was necessary for the proper functioning of the regime of State responsibility, if and when such a regime took the form of a convention.
Jordan would also support an Assembly resolution taking note of the draft articles, which would be annexed to the resolution, he said. The Assembly should then consider convening an international conference to adopt a convention on State responsibility. Jordan welcomed any effort aimed at adopting a convention at the earliest possible time, noting that the authoritative value of the restatement of State responsibility, as an annex to an Assembly resolution, may not be undermined, even if a convention on the issue was not concluded.
KRIANGSAK KITTICHAISAREE (Thailand) said it was clear that under international law States were, in certain circumstances, allowed to take countermeasures, when it was done in accordance with law and the norms of international relations. Accordingly, his delegation welcomed the provision for the taking of countermeasures by States in the draft articles. Adequate restrictions and requirements were applied to the resort to countermeasures by States. His delegation did, however, have concern over the vagueness of the concept of "obligations owed to the international community as a whole". It was hoped that, in time and as a result of State practice, the application of this concept would become clearer.
Of some controversy was the new draft article on "Measures taken by States other than an injured State"; the deletion of the previous article on this was taken as a compromise effort. The reference to "lawful measures" as opposed to "countermeasures" raised some doubt as to the precise meaning and scope of "lawful measures". By not taking a position on the issue, the Commission had left the matter to the development of international law.
He said his delegation noted with concern that the draft articles did not include provision for the settlement of disputes. It has been noted that such provision might be made by an international conference that may be governed by the General Assembly. He said he would have preferred the draft articles to have some reference to possible dispute settlement.
He said Thailand considered the draft articles to be, on the whole, a fair reflection of customary international law. The careful balance reflected in the text would not benefit from being subjected to a process of further negotiation during the course of any diplomatic conference; this may lead to the disruption of the text's fine balance in the text thereafter not even resulting in widespread ratification.
ANGELA CAVALIERE (Venezuela) said the format of a convention was the most appropriate form for a body of work with such weight, but she would not oppose a resolution annexing the articles. Overall, the text was acceptable even though it needed improvement. She cited three particular areas: responsibility of States; reservations to treaties; and unilateral actions of States.
The responsibility of States was one of the most important issues before the Commission. The articles had well set out the issue of countermeasures, to be seen as inducements to perform obligations rather than as sanctions. The possibility for an injured State to take action against another should be set out in terms of preserving the injured State’s rights. The articles on the breach of obligations by an injured State were well set out; the point was well made that all States were entitled to invoke responsibility for violations against them.
She said parties to a treaty should be able to express late reservations as long as some provisions were met. A distinction should be made between reservations and interpretative declarations. To clarify issues, care should be taken as to the meaning of words and the same meaning applied whenever the word occurred in the articles. Formulating a reservation did not necessarily imply legal effects, but a unilateral action could be closely bound up with juridical effects. Failure to be clear could lead to confusion when considering the Commission’s work as a whole.
The issue of unilateral actions was complex. Codifying such actions would help structure the resolution on the articles properly, and would help to devise rules for regulating them. Classifications based on legal effects would make a good framework for the work in that regard. It was unfortunate no information had come forward from the comprehensive report on advances made in that regard.
RICARDO BOCALANDRO (Argentina) said the draft articles represented a significant advance in the codification of international law. The concise and clear language was accompanied by clarifying commentaries.
With the articles, the Commission had made significant inroads into codifying international law in such important areas as invoking international responsibility. Enshrining the concept of serious breaches and their consequences in the articles was a significant achievement. It was a starting point for building a more integrated body of law on the issue. Also, the articles had dealt well with the difficult issue of countermeasures, stating clearly that their purpose was simply to bring an end to wrongful actions and not to punish perpetrators of those actions.
He said the Assembly should recommend to Member States a resolution with the articles annexed to facilitate the incorporation of articles into law. The resolution should also stipulate that the topic of State responsibility with regard to internationally wrongful acts be included in the Assembly’s agenda for its fifty-seventh session next year. The end goal for the articles was for them to be formulated as a convention.
IRENA CACIC (Croatia) said, while the principles governing State responsibility might not have changed much in substance since the first codification attempts in the 1930s, many concepts needed to be observed in a different light today. There had been a significant shift from the traditional notion of State responsibility towards a more community-oriented approach. Recent developments had been focused on the protection of certain values shared by the international community as a whole, imposing obligations erga omnes. The Commission had appropriately reflected this in the concept of the injured State and the invocation of responsibility, of the serious breaches of peremptory norms and particularly in article 48, which dealt with the obligations owed to the international community as a whole. These concept clearly departed form the traditional civil law analogies, giving precedence to the collective interest in compliance with the fundamental community values.
By its very nature, she said, the process of codification was never just a compilation of previously existing rules. The process of reinterpretation may amount to a progressive development.
On the question of the form of the draft articles, her delegation endorsed the two-step approach recommended by the Commission, following the recent example of the articles on "Nationality of natural persons in relation to the succession of States". The adoption of a General Assembly resolution, which would take note of the draft articles, would probably be the simplest and most practical form of giving to the articles the necessary recognition and publicity, whilst avoiding the risk of the "de-codifying effect" that a premature convention may have. However, this must not rule out the eventual adoption of the draft articles in the form of a convention.
It was true that this set of articles had already proved that the conventional form was not necessarily an indicator of their authority. They had been widely cited and had influenced the international jurisprudence even in their provisionally adopted form.
ALPHA CONNELLY (Ireland) said her country had argued that State practice did not support the attribution to States of criminal responsibility for certain conduct, but recognized that there was a qualitative difference between, for example, genocide and the failure or an embassy to pay service charges.
There was some merit in regarding obligations towards the international community as a whole as a distinct category, and the responsibility of States for a breach of those obligations was of a different order to the breach of an obligation owed to a State or States. She, therefore, welcomed the replacement of the concept of an international crime with that of a breach of an obligation to the international community as a whole.
On the subject of countermeasures, she said an explicit reference to the need to protect third parties to disputes from any adverse consequential effects of those measures taken against a wrongdoing State were absent. Countermeasures should not be directed against States other than the responsible State. However, the Commission had recognized that countermeasures might incidentally affect the position of third States or other third parties. It had said that, if those third parties had no individual rights in the matter, they could not complain. The principle of protecting third States from the indirect effects of measures taken against other States found expression in Article 50 of the United Nations Charter. A provision in the draft articles requiring injured States to minimize or avoid as far as possible the adverse effects of countermeasures on third parties would be consistent with that principle.
She said creating a convention out of the draft articles might weaken the balance struck by the Commission and would entail the reopening of a number of complicated and sensitive issues that were settled with great difficulty. As to the Commission’s recommendation that the Assembly consider, at a later stage, the possibility of convening an international conference to examine the draft articles with a view to concluding a convention on the topic, she said that seemed to be a decision for another day.
VOLODYMYR KROKHMAL (Ukraine) said the issue of State responsibility continued to grow in importance and there was an obvious need to have in place a conventional framework that would develop the law in that area. However, it would be premature to discuss the issue of convening a conference in order to consider the adoption of a convention at the current stage. States should have time to examine in depth the draft articles, and international practice should be allowed to develop. Therefore, the subject of State responsibility should be on next year’s General Assembly agenda, taking into account that all interested parties would be able to communicate their commentaries.
On the issue of diplomatic protection, he said the State had discretionary competence in exercising such protection and such discretionary power should not be confined or limited; diplomatic protection should be regarded as a right rather than a duty of the State. The question of whether a state should provide diplomatic protection was a matter of internal law, not international law.
The fact of habitual residence in itself was not enough to be considered as a condition for the exercise of diplomatic protection. The concept of habitual residence was a complex issue therefore it deserved further clarification. The International Law Commission should work to formulate a more precise definition of the distinction between an effective link and weak link between a national and his/her state.
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