|Statement by Mr. MA Xinmin, Chinese Delegate, at the Sixth Committee of the 62nd Session of the UN General Assembly, on Item 78 "Responsibility of States for Internationally Wrongful Acts"|
|New York, 23 October 2007|
In 2001, the International Law Commission completed the "Draft Articles on Responsibility of States for Internationally Wrongful Acts" after half a century of unremitting efforts. The draft articles have been formulated on the basis of more than 30 study reports submitted by the five special reporteurs . Hence, they are the result of hard work by all the special reporteurs and the members of the successive sessions of the International Law Commission. They also reflect the unyielding spirit of the ILC. The views of the Chinese delegation are as follows:
The draft articles and the accompanying commentaries take stock of the theories and practices of current laws on State responsibility in a comprehensive manner. This is a codification of the rules of customary international law regarding State responsibility. At the same time, this also reflects the gradual development of international law in some areas. The draft articles not only constitute an important contribution to the development of legal rules regarding State responsibility, but are also very important for safeguarding international relations and maintaining the stability and healthy development of international legal order. The draft articles have attracted wide attention from all governments and international judicial bodies. Quite a number of countries have already begun to use them as guidance in solving questions regarding State responsibility. The International Court of Justice and some regional judicial bodies have in many instances referred to the articles as basis for their trials.
Furthermore, the draft articles reflect the value orientation of safeguarding the interest of a state as well as the common interest of the international community. Take the examples of the provision on "Serious breaches of obligations under peremptory norms of general international law"( Art. 40 –Art. 41 ) and the provision on "Invocation of responsibility by a State other than an injured State" ( Art. 48). Guided by the need to protect the collective interest of the international community, these provisions further developed the legal framework of State responsibility. Apart from provisions on tradition system of State responsibility which is based on the bilateral relationship between the responsible State and the injured State, there are also provisions on the system of State responsibility based on the multilateral relationship between the responsible State and all other States of the international community.
Therefore, the draft articles as a whole should be applauded. But, they also have some problems, and they have shied away from some controversial issues. In its thematic statement on "State responsibility" delivered in the Sixth Committee during the 56th Session of the General Assembly in 2001, the Chinese delegation outlined our positions on issues such as " Serious breaches of obligations under peremptory norms of general international law", "countermeasures" as well as " conflict resolution". Here, I would like to make a few additional comments.
1. On the question of what constitutes the responsibility of State for internationally wrongful acts.
Art. 1 of the draft articles adopts the legislative approach of definition by principle, which defines State responsibility as the responsibility of a State entailed by its internationally wrongful act. The Chinese delegation supports this definition. However, we are of the view that, with regard to the grey areas, problems and contending issues in the current draft articles, there should be necessary provisions or some form of clarification. For example, are wrongful acts (intentional or by negligence) and injury necessary conditions for constituting State responsibility? Does the relationship between an internationally wrongful act and the injury have to be a causal relationship? Does an internationally wrongful act have to be of a certain severity?
2. On the question of whether "a State other than the injured State" is entitled to invoke State responsibility and take legitimate measures
According to Articles 48 and 54 of the draft articles, when the obligation breached by the responsible State is owed to the international community as a whole, relevant States other than the injured State are entitled to invoke the responsibility of State and take legitimate measures. My delegation would like to reiterate our suggestion to delete the above two provisions, a position which we laid out in our statement in the Sixth Committee deliberation on "State responsibility" during the 56th Session of the GA. However, if majority of countries insist on keeping the above mentioned provisions in the text, my delegation is willing to be flexible. We can consider keeping them, but with necessary amendments. We suggest the establishment of a collective authorization mechanism under which relevant States other than the injured State may invoke State responsibility and take legitimate measures. It should be stipulated that these non-injured States must obtain the authorization from the United Nations or other universally recognized international bodies which can represent the collective interest of the international community. For example, in the case where the obligation breached by a responsible State is an act which threatens international peace and security, care should be taken so as not undermine the exclusive prerogative of the Security Council in determining situations concerning international peace and security. In our opinion, it is not in the interest of the whole international community to give non-injured States the free hand to decide by themselves whether to invoke State responsibility and take legitimate measures. This practice could also be easily abused.
3. On the question of the responsibility entailed by a serious breach of obligations under peremptory norms of international law and a breach of obligations under general international law.
The Chinese delegation welcomes the fact that the draft articles differentiates "Serious breaches of obligations under peremptory norms of general international law" (serious breaches)( Art. 40) and breaches of obligations under general international law( general breaches). However, we find that there are still problems in the draft articles. For example, the draft articles make no distinction between the consequent responsibilities entailed by these two kinds of breaches. As a result, serious breaches don't entail greater responsibilities. However, there are additional legal obligations for non violators, such as not to recognize a lawful situation created by a serious breach of international obligations; not to render aid or assistance in maintaining that situation; and to cooperate in order to bring an end to any serious breach (Art.41). In our opinion, none of the above obligations is created because of acts of serious of breaches. All international wrongful acts should not be recognized or rendered assistance to. All States have the obligation to cooperate in order to bring an end to these acts. Therefore, we suggest that the draft articles should include provisions on the specific meaning of serious breaches as well as provisions on the proportioned responsibilities commensurate with different breaches.
4. On the question of countermeasures as legislative purpose
The Chinese delegation maintains the position on "countermeasures" which we outlined in our statement on "State responsibility" in the Sixth Committee during the 56th Session of the General Assembly. I would like to emphasize that in making decisions regarding the application of countermeasures, apart from meeting substantive and procedural conditions stipulated in the draft articles, injured States should also bear in mind the principle of inducing responsible States to comply with their obligations under international law.
We are also of the view that, the provision on countermeasures in the draft articles is mainly to induce the responsible States to comply with their international obligations, (Chapter 2 of Part 3), not stripping an act of its illegal nature of an act. This legislative arrangement shows that the draft articles regard countermeasures as the legislative purpose which guarantees implementation measure for international obligations. All injured States have the obligation to adopt countermeasures in a manner strictly according to the legislative purpose of the draft articles.
With regard to the final form of the draft Articles, the Chinese delegation is of the view that we can consider adopting a phased approach. As a first step, we may consider adopting a GA resolution or a declaration, or a GA resolution with a declaration annexed to it. This can serve as a guidance or reference document for State's practice and judgments by international judicial bodies. At the opportune time in the future, we may consider formulating an international convention on the basis of a relevant GA resolution or declaration.
The Chinese delegation would like to suggest that, should we decide to adopt a GA resolution with an annexed declaration, we should add a preface to the current draft articles. We may also consider adding a final clause and an article on settlement of disputes.
Thank you, Mr. Chairman.