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The Continuing Debate on a un Convention on State Responsibility

Published online by Cambridge University Press:  17 January 2008

James Crawford  and
Simon Olleson
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Extract

At its 59th session in 2004, the General Assembly revisited the question of what should be done with the Articles on Responsibility of States for Internationally Wrongful Acts (‘the Articles’), adopted by the International Law Commission (‘ILC’) in 2001. By Resolution 59/35, adopted by consensus on 2 December 2004 on the recommendation of the Sixth Committee, the General Assembly once again resolved to defer further consideration and any decision on the final form of the Articles, postponing the matter to its 62nd session in 2007. It also asked the Secretariat to prepare a compendium of jurisprudence and State practice to assist the Assembly in its consideration of the topic at that time.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 54 , Issue 4 , October 2005 , pp. 959 - 971
Copyright
Copyright © British Institute of International and Comparative Law 2005

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References

1 General Assembly Resolution 59/35, 2 Dec 2000; UN Doc A/RES/59/35, adopted at the 65th plenary meeting of the General Assembly (see UN Doc A/59/SR.65). For the report of the Sixth Committee, see UN Doc A/59/505.

2 For the Articles and Commentaries see Report of the International Law Commission on the Work of its Fifty Third Session, UN Doc A/56/10, Ch IV. The Articles and Commentaries are reproduced with an introduction and accompanying analytical apparatus in James Crawford The ILC's Articles on State Responsibility; Introduction, Text and Commentaries (CUP Cambridge 2002); versions have been produced in French (Les articles de la C.D.I. sur la responsabilité de l'Etat; Introduction, texte et commentaires (Pedone Paris 2003)) and Spanish (Los artículos de la Comisión de Derecho Internacional sobre la responsabilidad internacional del Estado: introducción, texto y comentario (Dykinson Madrid 2005)); a Chinese version is in press.

3 Report of the International Law Commision on the Work of its Fifty Third Session (n 2), (§§72–3); for the record of the debate within the ILC, see UN Doc A/CN.4/SR.2709 (9 Aug 2001). See also J Crawford, J Peel, and S Olleson ‘The ILC's Articles on Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading’ (2001) 12 EJIL 963, 969–70. The recommendation by the ILC followed the precedent set by the General Assembly in relation to the ILC's draft articles on the topic of nationality and State succession. The ILC had recommended that the draft articles be adopted in the form of a declaration (see Report of the International Law Commission on the Work of its Fifty First Session; UN Doc A/54/10 and Corr 1 and 2) (1999) 14 at 44). Initially the General Assembly postponed any decision to the following session and invited comments from governments as to the possibility of the conclusion of a convention (General Assembly Resolution 54/112, 9 Dec 1999; UN Doc A/RES/54/112). Subsequently it took note of the draft articles, which were annexed to the resolution, invited governments to take the principles contained in the articles into account when dealing with questions of nationality of persons in the context of State succession, and decided to return to the question of their final form at its 59th session in 2004 (General Assembly Resolution 55/153, 12 Dec 2000; UN Doc A/RES/55/153). In 2004, the General Assembly again invited governments to take the principles contained in the draft articles into account, encouraged the elaboration of regional or sub-regional instruments addressing the question (an implicit reference to the Council of Europe's draft Protocol on the avoidance of statelessness in relation to State succession, currently under discussion), and again invited States to submit comments as to the advisability of conclusion of a legal instrument on the subject, and postponed further conclusion to its 63rd session in 2008 (General Assembly Resolution 59/34, 2 Dec 2000; UN Doc A/RES/59/34).

4 For the summary records of the debates at the 56th session, see UN Docs A/C.6/56/SR.11–24, 27.

5 General Assembly Resolution 56/83, 12 Dec 2001; UN Doc A/RES/56/83, §3.

6 Report of the ILC on the Work of its Fifty Sixth Session; UN Doc A/59/10 (2004).

7 For the summary records of the two meetings, see UN Doc A/C.6/59/SR.15 (The Netherlands, Brazil, Japan, China, the USA, Belarus, Israel, United Kingdom, Finland, Portugal, Greece, Slovakia, Australia, Austria, Spain, Uruguay, Venezuela, and Guatemala) and UN Doc A/C.6/59/SR.16 (Thailand, Cyprus, France, Jordan, Germany, Russian Federation, Switzerland, Mexico, Italy, and Cuba). Finland made a statement on behalf of itself and the other Nordic countries (Denmark, Iceland, Norway, and Sweden), while Australia made a statement on behalf of itself and Canada and New Zealand. The following summary is based on the texts of the statements made available by the delegations, and summaries of the statements by the other delegations, both on file with the authors.

8 UN Doc A/C.6/59/SR.15 §63.

9 For the draft resolution, see UN Doc A/C.6/59/L.22; see also UN Doc A/C.6/59/SR.25 for the introduction of the draft.

10 See UN Doc A/C.6/59/SR.26 and the report of the Sixth Committee to the General Assembly on the topic: UN Doc A/59/505 (22 Nov 2004)Google Scholar.

11 Resolution 59/35 (n 1) §1.

12 ibid §4.

13 ibid §§2 and 3.

14 See UN Doc: A/C.6/59/SR.25, § 59.

15 See, eg, Gab_íkovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7 at 38, 39–41, 46, 54, 55–6 (§§47, 50–3, 58, 79, and 83); ‘Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights’ [1999] ICJ Rep 62 at 87 (§62); see also, eg, the dissenting opinions of Judge Schwebel in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), ‘Jurisdiction and Admissibility’ [1984] ICJ Rep 392 at 607–8 (§74); and ‘Merits’ [1986] ICJ Rep 14 at 377–8 (§§232–3); and the Separate Opinion of Judge Shahabuddeen in Certain Phosphate Lands in Nauru (Nauru v. Australia) ‘Preliminary Objections’ [1992] ICJ Rep 240 at 283–4.

16 See, eg, the Arbitral Tribunal in Rainbow Warrior (New Zealand/France), RIAA, vol XX, 217 (1990); the International Tribunal for the Law of the Sea in The M/V ‘Saiga’ (No2) (Saint Vincent and the Grenadines v Guinea), (1999) 38 International Legal Materials 1323, at 1345, 1351–2 and 1357 (§§98, 133, and 171) and the brief reference of the Panel in European Communities—Regime for the Importation, Sale and Distribution of Bananas, Complaint by the United States, WT/DS27/R/USA, report of 22 May 1997, n 361. See also the Panel Report in Turkey—Restrictions on Imports of Textile and Clothing Products, report of 31 May 1999, WT/DS34/R, §§9.42–9.43.

17 See, eg, the discussion of Art 4 in the decision of the United States Court of Appeals for the Second Circuit, in Compagnie Noga D'Importation et D'Exportation, SA v Russian Federation, 361 F.3d 676 (2004) at 689.

18 ‘Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory’ [2004] ICJ Rep 136 at 194–5 (§140); see also the ‘Declaration of Judge Buergenthal’ [2004] ICJ Rep at 241 (§4), referring to the formulation of the right of self-defence as a circumstance precluding wrongfulness in Art 22 of the Articles. Judge Simma had already referred to the Articles in his Separate Opinion in Oil Platforms (United States of America v Iran) on the questions of countermeasures and plurality of responsible States: [2004] ICJ Rep 161 at 332 (§12, footnote 19), and 358–9 (§§75–8). In relation to the latter point, Judge Simma referred to the Articles as constituting an ‘authoritative source’ of the law (ibid at 358, (§75)).

19 Legal Consequences (n 18) at 199–200 (§§154–60), in particular at 200 (§§ 159 and 160). cf the Separate Opinion of Judge Kooijmans, dissenting on this point, discussing Art 41 of the Articles: ibid at 230–2 (§§37–45).

20 The Court emphasized the erga omnes nature of the right to self-determination and certain rules of humanitarian law (ibid at 199–200 (§§156–8)); it then observed that ‘[g]iven the character and the importance of the rights and obligations involved’, certain consequences were involved for other States (ibid, at 200 (§159). Although the most natural reading of the Court's judgment is that it is the erga omnes nature of the rights and obligations which produce these consequences, given that the rights in question also undoubtedly form part of jus cogens, it is possible that the Court was referring (in an extremely elliptical manner) to the peremptory character of the norms. For criticism of the Court's approach on this point, and in particularly its apparent reliance on the erga omnes character of the norms in question, see the Separate Opinion of Judge Higgins, ibid at 216–17 (§§37–9).

21 See, eg, the decisions of the Appellate Body in United States—Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan, report of 8 Oct 2001, WT/DS192/AB/R, §120 and United States—Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe From Korea, report of 15 Feb 2002, WT/DS202/AB/R, §259 (Art 51 (proportionality of countermeasures)); the decision of the arbitrator in United States—Tax Treatment For ‘Foreign Sales Corporations’, WT/DS108/ARB, decision of 30 Aug 2002, §5.26 (Art 51, proportionality) and §5.58–5.60 (Art 49(1); object and purpose of countermeasures); and the Report of the Panel in Measures Affecting The Cross-Border Supply Of Gambling And Betting Services, WT/DS285/R, report of 10 Nov 2004, §§6.128–6.129 (Art 4; attribution of organs of the State; 7–9.130). See also recently European Communities—Measures Affecting Trade In Commercial Vessels, report of 22 Apr 2005, WT/DS301/R, where the Articles were relied on heavily in argument by parties.

22 See, eg, Ila_cu and Others v Moldova and Russia (Merits and Just Satisfaction) Application No 48787/99, judgment of the Grand Chamber of 8 July 2004, § 319 (ultra vires acts) and §§320–1 (continuing wrongful acts) (available at <http://www.echr.coe.int>).

23 See, eg, the award of the tribunal in Mondev International Ltd v United States of America, ICSID Case No. ARB(AF) /99/2, award of 11 Oct 2002, ICSID Reports, vol 6, 192, at 208, 222 (§§68, 115); the decision on annulment of the ad hoc committee in Compañiá de Aguas del Aconquija SA and Vivendi Universal v Argentine Republic, ICSID Case No ARB/97/3, decision of 3 July 2002, ICSID Reports, vol 6, 340 at 346, 366 (§§16 (footnote 17), 95, 97); and the awards of the tribunals in ADF Group Inc v United States of America, ICSID Case No ARB(AF) /00/1, Award of 9 Jan 2003, ICSID Reports, vol 6, 470, at 522, 533 (§§166, 190); The Loewen Group Inc. and Raymond L Loewen v United States of America, ICSID Case No ARB(AF) /98/3, Award of 26 June 2003, ICSID Reports, vol 7, 442, at 470–1 (§149); CMS Gas Transmission Company v Republic of Argentina, ICSID Case No ARB/01/8, Decision on Objections to Jurisdiction of 17 July 2003, ICSID Reports, vol 7, 492 at 517 (§108); SGS Société Générale de Surveillance SA v Republic of the Philippines, ICSID Case No ARB/02/6, Decision on Objections to Jurisdiction of 29 Jan 2004, ICSID Reports, vol 8, 518 at 552 (§122); Tokios Tokeles v Ukraine, ICSID Case No. ARB/02/18, Decision on Jurisdiction of 29 Apr 2004, §102 (available at <http://www.investmentclaims.com/decisions/Tokios-Ukraine-Jurisdiction- 29Apr2004.pdf>) Impregilo SpA v Islamic Republic of Pakistan (ICSID Case No ARB/03/3) Decision on Jurisdiction of 22 Apr 2005, §§312–313 (available at <http://www.investmentclaims. com/decisions/Impregilo-Pakistan-Jurisdiction-22Apr2005.pdf>) Eureko BV v Republic of Poland, Partial Award of 19 Aug 2005, §§128, 130–132, 187–188 (available at <http://www.investmentcaims.com/decisions/Eureko-Poland-LiabilityAward.pdf>); and the Award of 12 May 2005 in the CMS v Argentina case (available at <http://www.investmentclaims.com/decisions/CMS-Argentina-FinalAward-12May 2005.pdf>), referring extensively to Arts 25 and 27 in relation to necessity as a circumstance precluding wrongfulness, and Arts 34–6 of the Articles in relation to reparation.

24 See, eg, Permanent Court of Arbitration; Dispute concerning Access to Information under Article 9 of the OSPAR Convention (Ireland v United Kingdom) Final Award, 2 July 2003 (2003) 42 International Legal Materials 1118, at 1144 (§145).

25 Human Rights Committee, General Comment No 31, General Comment on Art 2; The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13, 29 Mar 2004. See, eg, §2: ‘While article 2 is couched in terms of the obligations of State Parties towards individuals as the right-holders under the Covenant, every State Party has a legal interest in the performance by every other State Party of its obligations. […] the Committee commends to States Parties the view that violations of Covenant rights by any State Party deserve their attention. To draw attention to possible breaches of Covenant obligations by other States Parties and to call on them to comply with their Covenant obligations should, far from being regarded as an unfriendly act, be considered as a reflection of legitimate community interest.’

26 See, eg, Report of the ILC on the Work of its 53rd Session (n 1) at 59; Crawford The ILC's Articles (n 1) at 74.

27 LaGrand (Germany v United States of America), ICJ Reports 2001, 466, at 481 (§39); the acceptance was limited to the injury to Germany as such, and did not extend to the claims of violation of the individual rights of the LaGrand brothers, in relation to which a jurisdictional objection was taken.

28 ibid at 480–3 (§§37–42), in relation to the question of whether the Convention granted rights to individuals.

29 Factory at Chorzów, Jurisdiction, 1927, PCIJ, Series A, No 9, at 21: ‘It is a principle of international law that breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity that this be stated in the convention itself. Differences relating to reparations, which may be due by reason of failure to apply a convention, are consequently differences relating to its application.’

30 See Crawford, , Peel, , and Olleson, ‘The ILC's Articles…’ (n 3) at pp. 967–968.Google Scholar

For mor033e detailed discussion in relation to the dispute resolution provisions included in the draft Articles adopted in 1996 on first reading, see ibid at pp 966–969.

31 Aegean Sea Continental Shelf, ICJ Reports 1978, 3; see in particular the request made in Greece's Application (quoted at 6–7 (§ 12)) that the Court declare that ‘(v) that the activities of Turkey […] constitute infringements of the sovereign and exclusive rights of Greece to explore and exploit its continental shelf or to authorize scientific research respecting the continental shelf’.

32 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria; Equitorial Guinea intervening) [2002] ICJ Rep 303; the Court disposed of the claims and counter claims of violations of the border somewhat summarily. It dismissed Cameroon's claim for a declaration that Nigeria was obliged to withdraw troops from the Bakassi peninsula and the area near Lake Chad awarded to Cameroon, and for guarantees of non-repetition in that regard on the basis that having delimited the boundary it could not ‘envisage a situation where either Party […]would fail to respect the territorial sovereignty’ of the other Party (ibid at 452 (§318)); the Court continued that moreover ‘In the circumstances of the case […] by the very fact of the present Judgment and of the evacuation of the Cameroonian territory occupied by Nigeria, the injury suffered by Cameroon by reason of the occupation of its territory will in all events have been sufficiently addressed. The Court will not therefore seek to ascertain whether and to what extent Nigeria's responsibility to Cameroon has been engaged as a result of that occupation’ (ibid, at 452 (§319)). The Court further held that Cameroon had failed to prove its allegations as to breach by Nigeria of the Provisional Measures (ibid, at 453 (§322)), and further held that neither party had established the facts supporting their claims in relation to border incidents or had proved that those acts were imputable to the other party (ibid, at 453 (§324)).

33 The ‘Lotus’, 1927 PCIJ Series A No 10; it was expressly contemplated in the compromis submitting the case to the Permanent Court that if the Turkish exercise of jurisdiction over Lieutenant Demons was found to be contrary to international law, the Permanent Court should then go on to consider the question of whether pecuniary reparation was payable in those circumstances, and if so, in what amount (ibid at 5).

34 Fisheries Jurisdiction (Spain v Canada), Jurisdiction of the Court [1998] ICJ Rep 432; see in particular the declaration sought in the Spanish Application (quoted ibid at 437 (§10)) that Canada was bound to refrain from the exercise of jurisdiction outside its exclusive economic zone, and was bound to offer reparation in the form of ‘an indemnity the amount of which must cover all injuries and damages occasioned’, and that the boarding of the Estai breached international law. See also Fisheries Jurisdiction (Federal Republic of Germany v United Kindom), Merits [1974] ICJ Rep 3; Fisheries Jurisdiction (Federal Republic of Germany v Iceland), Merits [1974] ICJ Rep 175; the UK in its Memorial on the Merits had requested (quoted ibid at 7 (§11)), a declaration that Iceland's activities in interfering with fishing vessel were unlawful and that ‘Iceland is under an obligation to make compensation therefor to the United Kingdom (the form and amount of such compensation to be assessed, failing agreement between the Parties, in such manner as the Court may indicate)’; similarly, Germany had requested a similar declaration that Iceland's acts were unlawful, and ‘that Iceland is under an obligation to make compensation therefor to the Federal Republic of Germany’ (ibid at 179 (§12)). The UK settled that part of its claim prior to the hearing on the merits and accordingly withdrew it (ibid at 7 (§12)), while the Court refused to accede to Germany's claim on the basis that there was no concrete claim for damage suffered supported by detailed evidence, and Germany had not requested the Court to assess the quantum in a separate phase of the proceedings (ibid at 204–5 (§76)).

35 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Rep 3. Note the request in the DRC's Memorial and oral submissions (quoted ibid at 8–9 (§12)) for a declaration that ‘a formal finding by the Court of the unlawfulness of that act constitutes an appropriate form of satisfaction, providing reparation for the consequent moral injury to the DRC’.

36 cf the view of Shabtai Rosenne ‘State Responsibility—Festina Lente’ (2004) 75 British Yearbook of International Law 363, at 371 ‘Resolution 56/83 gives the draft articles on the responsibility of States for internationally wrongful acts a firmer standing than they would have had had they not been so annexed, and this standing is increased by Resolution 59/35. The General Assembly in fact is inviting law applying organs, and that includes individual States attempting to resolve a dispute in which issues of State responsibility are relevant, to look to the draft articles as a statement of the law on the matter. Time will tell how effective this new method of codifying a difficult branch of the law will be.’