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Edgar Mironov
Edgar Mironov

Draft Articles On Responsibility Of States For ...

Pursuant to resolution 71/133, the Committee decided, at its 1st meeting, on 7 October 2019, to establish a working group on the responsibility of States for internationally wrongful acts, in order to fulfil the mandate conferred by the General Assembly on the Committee, namely, to further examine the question of a convention on the topic or other appropriate action on the basis of the articles drafted by the International Law Commission. At the same meeting, the Committee decided to open the Working Group to all States Members of the United Nations or members of the specialized agencies or of the International Atomic Energy Agency. The Working Group, which was chaired by Ms. Maitê de Sousa Schmitz (Brazil), held three meetings, on 15, 22 October and 7 November 2019, respectively. At the 34th meeting of the Committee, on 11 November, the Chair of the Working Group presented an oral report on the work of the Working Group.

Draft articles on Responsibility of States for ...

Many delegations supported the negotiation of a convention based on the articles. It was reiterated that the negotiation of a convention would lead to increased legal certainty and crystallization of the norms on State responsibility, while addressing any remaining outstanding substantive issues. Delegations reiterated that the articles were balanced and methodical and would provide a good basis for the elaboration of a convention. Some delegations addressed the need to define the scope of a diplomatic conference clearly. This was thought to be able to eliminate the risk of diluting those substantive articles that have been accepted through State practice, and to retain the careful balance struck within the articles. Several delegations expressed the view that the incorporation of a dispute settlement mechanism within a convention would increase certainty and preclude abuse of the articles. Some delegations highlighted that the failure by the Sixth Committee to act would signal disinterest by Member States and could contribute to the fragmentation of the jurisprudence on the topic.

Under the draft resolution, the General Assembly would inter alia acknowledge the importance and usefulness of the articles on responsibility of States for internationally wrongful acts and commend them to the attention of Governments. It would request the Secretary-General to invite Governments to submit further written comments on any future action regarding the articles. It would acknowledge that a growing number of decisions of international courts, tribunals and other bodies refer to the articles. It would further request the Secretary-General to update the technical report listing, in a tabular format, the references to the articles contained in the compilation of decisions of international courts, tribunals and other bodies referring to the articles prepared since 2001, as well as references to the articles made in submissions presented by Member States before international courts, tribunals and other bodies since 2001, and further request the Secretary-General to submit such material during its seventy-seventh session.

Although the articles are general in coverage, they do not necessarily apply in all cases. Particular treaty regimes, such as the General Agreement on Tariffs and Trade and the European Convention on Human Rights, have established their own special rules of responsibility.

Traditionally, the term "state responsibility" referred only to state responsibility for injuries to aliens. It included not only "secondary" issues such as attribution and remedies, but also the primary rights and duties of states, for example the asserted international standard of treatment and the right of diplomatic protection. Early efforts by the League of Nations and private bodies to codify the rules of "state responsibility" reflected the traditional focus on responsibility for injuries to aliens.[4] The League's 1930 Codification Conference in The Hague was able to reach an agreement only on "secondary" issues such as imputation, not on substantive rules regarding the treatment of aliens and their property.

The ILC's first special rapporteur on state responsibility, F.V. García Amador of Cuba, appointed in 1955 noted, "It would be difficult to find a topic beset with greater confusion and uncertainty."[7] García Amador attempted to return to the traditional focus on responsibility for injury to aliens but his work was essentially abandoned by the ILC when his membership ended in 1961. His successor, Roberto Ago of Italy, reconceptualised the ILC's work in terms of the distinction between primary and secondary rules, and also established the basic organisational structure of what would become the Draft Articles. By focusing on general rules, stated at a high level of abstraction, Ago created a politically safe space within which the ILC could work and largely avoid the contentious debates of the day. From 1969 until his election to the ICJ in 1980, Ago completed work on part 1 of the draft articles, addressing the origin of state responsibility. Most of the thirty-five articles adopted during his tenure are reflected in the final draft.

In 1995, the United Nations General Assembly adopted a resolution in effect pressing the Commission to make progress on the state responsibility articles and other long-pending projects.[8] James Crawford of Australia, appointed as special rapporteur in 1996, approached the task pragmatically. The ILC moved rapidly through a second reading of the draft articles, adopting what it could agree on and jettisoning the rest, most notable of which was Article 19 on state crimes and the section on dispute settlement.

Despite their apparent concreteness, the standards stated in some rules involve important ambiguities, and their application will often require significant fact-finding and judgment. Most rules state responsibility involving private acts already arise under primary rules. For example, environmental and human rights agreements require states to prevent abuses by private parties.

Second, the articles create new rights for injured states, principally, the right to invoke responsibility (Articles 42 and 48) and a limited right to take countermeasures (Articles 49-53). These rights, however, are heavily state-centred and do not deal with how state responsibility is to be implemented if the holder of the right is an individual or an organisation. The principal element of progressive development in this area is Article 48, which provides that certain violations of international obligations can affect the international community as a whole such that state responsibility can be invoked by states on behalf of the larger community. This provision picks up on the ICJ's celebrated suggestion in Barcelona Traction that some obligations are owed erga omnes, toward the international community as a whole.[20]

Articles on Responsibility of States for Internationally Wrongful Acts (with Commentaries).These articles, which codified the customary law on state responsibility, were adopted by the International Law Commission of the United Nations in 2001 after more than four decades of discussion. Visit the UN's Audiovisual Library of International Law to access the procedural history of the International Law Commission's codification of the law of state responsibility, as well as links to related documentation. For additional analysis and commentary on this codification, consult the reference books described below.

UN peacekeeping--state responsibility--draft articles oninternational responsibility of international organizations-- dualattribution--effective control--European Convention on HumanRights--International Covenant on Civil and Political Rights

As regards the attribution of Dutchbat's conduct, theNetherlands argued that Article 6 of the Draft Articles on the Responsibilityof International Organizations (draft articles), (9) which provides that theconduct of an organ of an international organization in the performance ofits functions should be considered an act of that organization, meant thatDutchbat's conduct should be attributed to the United Nations (para.3.10.1). The Supreme Court rejected this argument (para. 3.10.2), relyinginstead on Article 7 of the draft articles concerning situations in which astate places troops at UN disposal for a peacekeeping mission, and commandand control is transferred to the organization: "The conduct of an organof a State or an organ or agent of an international organization

In its commentaries to the draft articles, the International LawCommission (ILC) explains that Article 6 applies when an organ of oneinternational organization is fully seconded to another organization, whereasArticle 7 applies when the seconded organ still acts to a certain extent asan organ of the seconding state or as an organ of the seconding organization,since that state retains disciplinary powers and criminal jurisdiction overthe members of the national contingent. (11) In practice, however, given thevaried mandates and operations of different organizations, and the varyingstructures and circumstances, to whom specific conduct of the seconded organis to be attributed is not always clear.

The Supreme Court upheld the court of appeal's ruling thatmore than one party can have effective control over UN troops' conductand that it is therefore possible for the actions of UN peacekeepers to beattributed to both the United Nations and a contributing state (paras. 3.5.2,3.9.4, 3.11.2). This holding allowed the Supreme Court to examine onlywhether the state effectively controlled the disputed conduct and to leaveopen the question of UN effective control (paras. 3.5.2, 3.11.2). The ILC hasrecognized the possibility of dual (or multiple) attribution, (12) but itslegal basis has not been firmly established. The Supreme Court consideredthat Article 7 of the draft articles in conjunction with their Article 48(1)might serve as a legal basis for dual attribution (para. 3.11.2). (13) 041b061a72


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