|Statement by Ms. XUE Hanqin of the Chinese Delegation on Agenda Item 159: Report of the International Law Commission - State Responsibility|
Report of the International Law Commission
23 October 2000
The formulation of a comprehensive set of legal rules governing State responsibility is a challenging task entrusted to the International Law Commission by the General Assembly. It is gratifying to the Chinese delegation that after 40 odd years of efforts, this task is near completion. The ILC report submitted to the GA shows that the Commission has successfully accomplished the preliminary consideration of the draft articles on State responsibility adopted on first reading by the ILC at its 52nd session and has produced a comprehensive revised text for the draft articles, laying the groundwork for finally completing the second reading of the articles in 2001. We wish to express our appreciation for the tireless efforts of the ILC and in particular the excellent work of the present Special Rapporteur, Mr. James Crawford. I'd like now to make a few preliminary observations on some of the issues concerned in the report.
The question of countermeasures has long been one of the most controversial aspects of the regime of State responsibility and was a focus of contention at the latest session of the ILC. We believe that in the context of the respect for international law and basic principles of international relations, countermeasures can be one of the legitimate means available to a country injured by an internationally wrongful act to redress the injury and protect its interests. However, in view of past and possible future abuses of countermeasures, recognition of the right of an injured country to take countermeasures must be accompanied by appropriate restrictions on their use with a view to striking a balance between the recognition of the legitimacy of countermeasures and the need to curb their misuse. When commenting on draft articles 30, 47 and 48 concerning countermeasures at the first reading, my delegation pointed out the need to further clarify and improve upon those provisions. For example, what precisely is meant by "interim measures of protection"? We've noted the improvement in this regard in the revised text. The new text has added qualifying phrases such as "to the extent" and "under the conditions set out in…" to the wording of article 30 as well conditions and restrictions clearly setting out the aims of and limitations on the resort to countermeasures. The revised text also deleted the reference to "interim measures of protection". These are welcome improvements but there is room for further improvement in the entire text on countermeasures. The desirability of the newly added article 54 on collective countermeasures and the related article 49 remains to be determined.
Article 49 would allow any country other than the injured State to invoke the responsibility of another country if the obligation breached is owed to the international community as a whole (erga omnes), or to a group of States of which it is one and the obligation is established for the protection of the collective interests of that group of States. Article 54 further allows such countries to take countermeasures at the request and on behalf of any State injured by the breach. These provisions would obviously introduce elements akin to "collective sanctions" or "collective intervention" in the regime of state responsibility. They would broaden the category of countries with the right to resort to countermeasures and establish so-called "collective countermeasures". This would run counter to the basic principle that countermeasures should and can only be taken by countries injured by an internationally wrongful act. More ominously, "collective countermeasures" could become one more pretext for power politics in international relations. The reality in international life is that only powerful States and blocs of countries are in a position to take countermeasures against weaker nations. In addition, "collective countermeasures" are inconsistent with the principle of proportionality enunciated in Article 52. The same countermeasures would become tougher when non-injured States join in. This would have the undesirable consequence of countermeasures greatly exceeding the injury. As Article 54 further complicates the already complex question of countermeasures, making it even more controversial, the best solution would be the deletion of that article as well as article 49 concerning the invocation of responsibility by non-injured States.
Another highly controversial question in the regime of state responsibility is State "crimes". My delegation has stated its position on this question on several occasions. It is our long-held view that the introduction of the concept of State "crimes" in international law will encounter insurmountable obstacles both in theory and in practice. In an international community made up of sovereign States, "par in parem non habet jurisdictionem"is a basic legal principle. Furthermore, as early as in the Roman times, the theory of criminal law already affirmed that "societas delinquere non potest". It is impracticable to attempt the prosecution of State "crimes". Besides, rejection of the concept of State "crimes" will in no way diminish the personal legal responsibility of the person committing an internationally wrongful act. For these reasons, many delegations, including mine, proposed that the provisions relating to State "crimes" in draft article 19 adopted on first reading as well as provisions about their legal consequences in Part II be appropriately amended.
We note that the revised text reflects major amendments to article 19. Part II of the new text dedicates a separate chapter, including articles 41 and 42, to serious breaches of essential obligations to the international community. It replaces the concept of State "crimes" with that of serious breaches of essential obligations to the international community, thus circumventing the controversy surrounding State "crimes". The text also differentiates between varying degrees of the gravity of a breach. We favor this differentiation. There are, however, two points that need further clarification in Article 42. One question is whether the "damages reflecting the gravity of the breach" referred to in paragraph 1 would include punitive damages. We maintain that punitive damages should not be included and ask that this view be reflected in the commentary. The second question is the relationship between paragraph 2 and Security Council resolutions. The Security Council is the core organ in the UN collective security system. Paragraph 2(a) and (b) would amount to the creation of a parallel legal mechanism. Absent a universally acceptable international mechanism to judge the serious breaches referred to in article 41, the imposition of such an international obligation on States is likely to run into problems. We urge the ILC to study this question further.
The text of draft articles adopted on first reading contained a Part Three, consisting of 9 articles, that deals with ways and procedures of dispute settlement. This part suffered from an excess of detail and as a result drew a great deal of fire. Its retention or deletion was the subject of heated debate. We note that in the text provisionally adopted on second reading, the entire set of articles on dispute settlement has been deleted. Since article 33 of the UN Charter gives parties to a dispute a range of means of peaceful settlement of their own choice, we concede the need to amend Part Three. We do not, however, favor the simple deletion of all the articles concerning dispute settlement. As the question of State responsibility involves vital interests and rights and obligations of States, it is a sensitive area of international law that often provokes controversy. In order to deal with these questions in a satisfactory manner, it is necessary to set out general provisions for the peaceful settlement of disputes arising from State responsibility. We suggest that the ILC continue its consideration of the dispute settlement articles at its next session and submit a new revised text to this committee.
The text of the draft articles on State responsibility is nearing completion. We hope that the ILC will concentrate its time and energy at its next session on State responsibility as a priority matter and strive to complete second reading, as planned, in 2001 with a view to submitting a complete text of draft articles and commentaries to the General Assembly. As for the final form to be taken by the text of draft articles, we favor that of