In 1948 the United Nations General Assembly established the International Law Commission, as a step towards fulfilling the Charter mandate of ‘encouraging the progressive development of international law and its codification’. 6 The ILC's initial step was to draw up a work programme, which included the subject of State responsibility. 7
(p. 59) Work began in 1956 with García Amador of Cuba as Special Rapporteur. It covered State responsibility for injuries to aliens and their property. The concern was with the substantive rules of international law on the subject and not particularly on diplomatic protection. García Amador submitted six reports between 1956 and 1961, but the ILC hardly discussed them. The main reason for this was the divisiveness of the general debate held in 1957 which suggested that there was no agreement as to how to proceed. Some sought to limit the topic to diplomatic protection; others thought the rules of diplomatic protection outmoded. 8 An initial decision which was made had the effect of limiting the topic to ‘civil’ injuries to aliens. 9 But the rapporteur was criticized by others for not including, inter alia, ‘penal’ reprisals. 10 Little progress was made and finally his proposals were never discussed individually. 11
In 1962 an inter-sessional subcommittee of the ILC chaired by Roberto Ago (Italy) recommended that the ILC should redraw the boundaries of the topic so as to focus on ‘the definition of the general rules governing the international responsibility of the State’. 12 By this was meant the rules of general application concerning States responsibility, applicable not only to diplomatic protection as meaning responsibility for injuries to aliens but also to other fields (human rights, disarmament, environmental protection, the law of the sea etc.). By inference, the point was not to elaborate the substantive rules themselves or the specific obligations of States arising from them. These would differ, inter alia, from treaty to treaty and from State to State. Rather the focus was to be on the framework or matrix of rules of responsibility, identifying whether there has been a breach by a State of law and what were its consequences. The subcommittee added that:
there would be no question of neglecting the experience and material gathered in special sectors, specially that of responsibility for injuries to the person or property of aliens; and … that careful attention should be paid to the possible repercussions which new developments in international law may have had on responsibility. 13
In 1963 the ILC approved this reconceptualization of the topic and appointed Ago as Special Rapporteur. Between 1969 and 1980 he produced eight reports, together with a special addendum to the eighth report. During that time, the ILC provisionally adopted thirty-five articles, together making up Part One of the proposed Draft Articles (‘Origin of State Responsibility’). There was, among other things, a detailed treatment of the rules of attribution and the general justification or excuses for an internationally wrongful act (under the title ‘Circumstances precluding wrongfulness’). Ago's structure for the five chapters (p. 60) of Part One proved conclusive, but there was no similar structure for the remaining part or parts. Evidently these would concern reparation; he made it clear they should also include countermeasures. The consequences of ‘international crimes of State’, a concept introduced in one Article, would presumably be spelled out. But these were little more than vague hints, not formal proposals.
In 1979 Wilhelm Riphagen (Netherlands) was appointed Special Rapporteur. Between 1980 and 1986, he presented seven reports, containing a complete set of Draft Articles on Part Two (‘Content, forms and degrees of international responsibility’) and Part Three (‘Settlement of disputes’) together with commentaries. Owing to the priority given to other topics, however, only five Articles from his Part Two were provisionally adopted during this period. By far the most important of these was an Article including an extended definition of ‘injured State’.
In 1987, Riphagen not having been re-elected to the ILC, Gaetano Arangio-Ruiz (Italy) was appointed in his place. In the period 1988–1995, he presented seven reports. The Drafting Committee dealt with the remainder of Parts Two and Three in the quinquennium 1992–1996, enabling the ILC to adopt the text with commentaries on first reading in 1996. The Draft Articles of 1996 thus consisted of three tranches, Part One (Articles [1]-[35], adopted in the period 1971 to 1980 under Ago), a few articles in Part Two, Chapter I, adopted in the period to 1986 under Riphagen, and the residue dealing with reparation, countermeasures, the consequences of ‘international crimes’ and dispute settlement, adopted in the period 1992–1996 under Arangio-Ruiz.
During these years no attempt was made to reconsider any issues raised by Part One except the article referring to international crimes of State. Even then, once it had been decided to retain the concept of international crimes, the actual language was left undisturbed; only the addition of a footnote revealed the fundamental lack of consensus. 14 Nor for that matter were Riphagen's five articles in Part Two reconsidered. Following disagreements within the ILC on a number of questions—in particular, the relations between State responsibility and the powers of the Security Council—Arangio-Ruiz resigned as Special Rapporteur. Not having been renominated by Italy, he ceased to be a member of the ILC the same year. For these and other reasons, the coordination of articles in the different Parts, rather obviously lacking, was left to the second reading. The articles did contain sections on diplomatic protection in the narrow sense as defined in Chapter 1.
At its forty-ninth session in 1997 the ILC adopted a provisional timetable with the aim of completing the second reading by the end of the quinquennium, ie by 2001. Three major unresolved issues were tentatively identified as requiring special consideration: international crimes, the regime of countermeasures, and (p. 61) the settlement of disputes. 15 This was an obvious enough list, but as events were to prove it included only some among many unresolved issues. For the present purpose, suffice it to indicate how the project stood in 1996 in terms particularly of its handling of diplomatic protection in the narrow sense.
There was a limited article on exhaustion of local remedies, which was analyzed within the specific framework of a breach of a certain kind of obligation (Ago's draft). Generally, however, the draft available in 1996 showed an outcome consistent with a universal approach to the problem of State responsibility, freeing it from particular categories of rules such as those concerning diplomatic protection and injuries to aliens. There was ‘a contextual approach which avoids the imposition of across-the-board rules of substance and allows such questions to be solved for the purpose of each particular rule or even each particular case’. 16
James Crawford, who was appointed Special Rapporteur, revised and completed work on the draft codification on State responsibility by 2001. The second reading took place and the ILC submitted the draft to the GA. The draft dealt with State responsibility in general including a section on reparation and an Article 44 which contained a requirement that the rules relating to nationality of claims and exhaustion of local remedies should be observed where appropriate. 17 This article was the first relating to diplomatic protection as remedial action produced on a second reading by the ILC. The Commission, moreover, had succeeded in distinguishing among State responsibility in general, the substantive law of State Responsibility for Injuries to Aliens, and diplomatic protection as remedial action.
At almost the same time as Crawford was appointed Special Rapporteur for State Responsibility the ILC decided to prepare a draft code on diplomatic protection. Mohamed Bennouna was appointed Special Rapporteur in 1997 and produced a preliminary report on the subject in 1998. 18 The report addressed certain basic questions concerning diplomatic protection. Bennouna resigned from the ILC soon after and John Dugard took over as Special Rapporteur. Dugard produced five reports (with addenda) with draft articles on the subject 19 which were considered by the Commission and by 2004 a first reading of nineteen articles was completed. The articles dealt entirely with the aspects of diplomatic protection and were a thorough study of the subject as far as they went. However, there was no reference to special rules relating to damages in cases of diplomatic protection. In 2005, after the nineteen drafted articles had been referred in (p. 62) 2004 to the GA, 20 Dugard prepared a sixth report on the relevance of the clean hands doctrine to diplomatic protection, 21 in which he concluded that it had no relevance. The second reading of the articles was completed in 2006 and the completed articles were sent to the GA. 22
The drafted articles are as complete as can be found, even if one may not agree with everything in them. They are also drafted in such a manner as to leave open a few highly controversial matters. This draft will be considered in this work.
It may be noted that matters relevant to diplomatic protection have been dealt with by the ILC in two separate codification drafts. The final product on State responsibility with Crawford as Special Rapporteur referred to the rules on nationality of claims and exhaustion of local remedies (Article 44), which are at the heart of diplomatic protection, while not dealing with them in detail. That draft also treated, inter alia, the attribution of acts to the State and reparation. The articles on these last two subjects were based to a large extent on material relating to diplomatic protection as remedial action. Dugard's work as Special Rapporteur examined in detail most aspects of diplomatic protection as remedial action, while omitting consideration of attribution of acts to the State and reparation which had been considered in the work on State responsibility. 23 These features must be kept in mind, because in dealing with diplomatic protection as remedial action, elements relating to it are to be found in both sets of ILC articles. 24
Notes:
(1) See Dunn, The Protection of Nationals (1932) 62 ff for an account of this attempt at codification.
(2) The report was produced and signed by Guerrero only, although there was another member, who was indisposed, on the committee entrusted with drafting it. For the report see 20 AJIL, Supplement II 177–203.
(3) Dunn (note 1 above) 63–4, referring to Guerrero's report (note 2 above) 190–3.
(4) This doctrine was explained in Chapter 2 above. See also Chapter 12 below.
(5) Between the two world wars there were some private attempts to codify the whole gamut of the law relating to the responsibility of States for the treatment of aliens: eg the project drawn up in 1927 by the International Commission of Jurists appointed in conformity with a resolution of the Third Pan American Conference in 1906. Among the efforts of private organizations in this direction should be noted also the projects of the Institute of International Law, adopted at Lausanne in 1927, and of the American Institute of International Law submitted to the International Commission of Jurists at Rio de Janeiro in 1927. These latter are printed as Appendices 3 and 5 to the Report of the Harvard Research in International Law on The Law of Responsibility of States for Damage Done in Their Territory to the Person or Property of Foreigners (1930). There was also a draft convention prepared by the Research in International Law of the Harvard Law School for the First Conference on the Codification of International Law: Dunn, (note 1 above) 205 ff. Diplomatic protection as such was, inter alia, dealt with in this draft. This draft was updated later. Some Latin American bodies also produced drafts connected with the responsibility of States for injuries to aliens: García Amador, ‘First Report on State Responsibility’ to the ILC, 2 YBILC (1956) 226–7.
(6) UN Charter, Art. 13 (a); G.A. Res. 174 (II) of 21 November 1947. For a concise description of the ILC's work on State Responsibility see Crawford, The International Law Commissions Articles on State Responsibility (2002) 1 ff.
(7) YBILC (1949) 281.
(8) 1 YBILC (1957) 154–72.
(9) 1 YBILC (1956) 246.
(10) 1 YBILC (1957) 169.
(11) 1 ibid 181. In their final form they are recorded in 2 YBILC (1961) 46–54; see also García Amador, Sohn and Baxter, Recent Codification of State Responsibility for Injuries to Aliens (1974).
(12) 2 YBILC (1963) 228.
(13) Ibid.
(14) 2 YBILC (1996) 63.
(15) Report of the ILC, 1997, UN Doc. A/52/10 paras 30, 161.
(16) See Crawford (note 6 above) 13.
(17) Crawford, ibid 67–8 and 70.
(18) UN Doc. A/CN.4/484.
(19) See UN Doc. A/CN.4/506 and Add. (2000); UN Doc. A/CN.4/515 (2001); UN Doc. A/CN.4/523 and Add. (2002); UN Doc. A/CN.4/530 and Add. (2003); UN Doc. A/CN.4/538 (2004); UN Doc. A/CN.4/546 (2005).
(20) Report of the ILC, 2004 73 ff. The ILC had at about the same time submitted the Draft Articles to governments for their comments.
(21) UN Doc. A/CN.4/546 (2005).
(22) Report of the ILC, 2006 13 ff.
(23) There is a question mark in regard to the ILC's treatment of lawful excuses to wrongfulness as a matter for State responsibility, the content of which concerns secondary norms. It is unnecessary to discuss the question here. Suffice it to note the problem by asking whether such lawful excuses should really be regarded as part of the substantive law relating to international wrongs rather than as relating to secondary norms or remedial action.
(24) Private work, such as the 1961 Harvard Draft on State Responsibility, the 2006 Resolution 5/2006 on Diplomatic Protection of the ILA, and the resolutions of the Institut de droit international connected with State responsibility and diplomatic protection (eg the resolution adopted in 1965 on ‘The National Character of an International Claim Presented by a State for Injury Suffered by an Individual’, AIDI, Resolutions 1957–1991 (1992) 55ff), is not to be considered as involving official attempts at codification nor is comparable to such official attempts at codification.
Дата добавления: 2015-09-10; просмотров: 95 | Поможем написать вашу работу | Нарушение авторских прав |