United Nations

A/50/402


General Assembly

Distr. GENERAL  

5 September 1995

ORIGINAL:
ARABIC/CHINESE/
ENGLISH/FRENCH
RUSSIAN/SPANISH


Fiftieth session
Item 144 of the provisional agenda*


REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK
OF ITS FORTY-SEVENTH SESSION

Note by the Secretary-General


CONTENTS

              Page

I.  INTRODUCTION .....................................................2

II.  DRAFT ARTICLES ON STATE RESPONSIBILITY ...........................3

III.  DRAFT ARTICLES ON INTERNATIONAL LIABILITY FOR INJURIOUS
  CONSEQUENCES ARISING OUT OF ACTS NOT PROHIBITED BY INTERNATIONAL
  LAW ..............................................................9















                       

      *    A/50/150.


95-26988 (E)   130995/...
*9526988*

I.  INTRODUCTION


1.   The International Law Commission,  established in  pursuance of General
Assembly  resolution 174  (II) of 21  November 1947, in  accordance with its
statute annexed  thereto, as  subsequently amended,  held its  forty-seventh
session at its permanent seat at the United Nations Office  at Geneva from 2
May to 21 July 1995.

2.  The Commission's  agenda for its forty-seventh session consisted of  the
following items:

  1.  Filling of a casual vacancy.

  2.  Organization of the work of the session.

  3.  State responsibility.

  4.  Draft Code of Crimes against the Peace and Security of Mankind.

  5.International liability for  injurious consequences arising out of  acts
not prohibited by international law.

  6.  The law and practice relating to reservations to treaties.

  7.State succession and its impact on the nationality of natural and  legal
persons.

  8.Programme,  procedures and  working  methods of  the Commission  and its
documentation.

  9.  Cooperation with other bodies.

  10.  Date and place of the forty-eighth session.

  11.  Other business.

3.    The  work  of the  Commission  during  its  forty-seventh  session  is
described  in its report to the  General Assembly.   Official Records of the
General Assembly, Fiftieth Session,  Supplement No. 10  (A/50/10).   Chapter
IV,  devoted to "State  responsibility", contains  a number  of articles for
inclusion in  Parts Two and  Three of  the draft,  which were  provisionally
adopted  by  the  Commission  on  first   reading.    Chapter  V  concerning
"International liability for injurious consequences arising  out of acts not
prohibited  by  international  law"  contains  draft  articles  on   general
principles  which  were provisionally  adopted by  the  Commission on  first
reading.

 4.  For the  convenience of the representatives  to the fiftieth session of
the General Assembly,  the draft articles  adopted by the Commission  at its
forty-seventh session  under the two  above-mentioned topics are  reproduced
below.


II.  DRAFT ARTICLES ON STATE RESPONSIBILITY

Part Two

Content, forms and degrees of international responsibility

Article 13

Proportionality

  Any  countermeasure  taken  by an  injured  State  shall  not  be  out  of
proportion to  the degree of gravity of the internationally wrongful act and

the effects thereof on the injured State.


Article 14

Prohibited countermeasures

  An injured State shall not resort, by way of countermeasure, to:

  (a)   The threat  or use  of force  as prohibited  by the  Charter of  the
United Nations;

  (b)   Extreme  economic or  political  coercion  designed to  endanger the
territorial  integrity or  political independence  of  the State  which  has
committed an internationally wrongful act;

  (c)   Any  conduct which  infringes  the  inviolability of  diplomatic  or
consular agents, premises, archives and documents;

  (d)  Any conduct which derogates from basic human rights; or

  (e)  Any other  conduct in contravention  of a peremptory norm of  general
international law.











Part Three

Settlement of disputes

Article 1

Negotiation

  If a  dispute regarding the interpretation  or application  of the present
draft articles  arises between  two or  more States Parties  to the  present
draft articles, they shall, upon  the request of any of them, seek to settle
it amicably by negotiation.


Article 2

Good offices and mediation

  Any  State Party to the present  draft articles, not  being a party to the
dispute, may, upon its own initiative or at the request of any  party to the
dispute, tender  its  good  offices  or offer  to  mediate  with a  view  to
facilitating an amicable settlement of the dispute.


Article 3

Conciliation

  If,  three months after  the first  request for  negotiations, the dispute
has  not  been settled  by  agreement and  no  mode  of  binding third-party
settlement has been  instituted, any party to the  dispute may submit it  to
conciliation in conformity with  the procedure set out  in the annex  to the

present draft articles.


Article 4

Task of the Conciliation Commission

1.   The  task of  the Conciliation  Commission shall  be to  elucidate  the
questions in dispute, to collect with  that object all necessary information
by means of  inquiry or otherwise and to  endeavour to bring the parties  to
the dispute to a settlement.

2.   To that end, the  parties shall provide the Commission with a statement
of their  position regarding the dispute  and of the  facts upon which  that
position is based.  In addition, they shall  provide the Commission with any
further information  or evidence  as the  Commission may  request and  shall
assist  the  Commission in  any  independent  fact-finding  it  may wish  to
undertake, including fact-finding within the territory  of any party to  the
dispute, except  where exceptional reasons make  this impractical.   In that
event,  that  party  shall  give  the  Commission  an  explanation  of those
exceptional reasons.
  3.   The Commission may, at  its discretion, make preliminary proposals to
any or all of the parties, without prejudice to its final recommendations.

4.  The recommendations to the parties shall  be embodied in a report  to be
presented not later  than three months from  the formal constitution of  the
Commission,  and the  Commission may  specify  the  period within  which the
parties are to respond to those recommendations.

5.  If the response by the parties  to the Commission's recommendations does
not lead  to the  settlement of  the dispute,  the Commission may  submit to
them a  final report containing its  own evaluation of  the dispute and  its
recommendations for settlement.


Article 5

Arbitration

1.   Failing the establishment of  the Conciliation  Commission provided for
in  article 3 or  failing an agreed  settlement within  six months following
the report of the Commission, the parties to  the dispute may, by agreement,
submit the dispute to  an arbitral tribunal to be constituted in  conformity
with the annex to the present draft articles.

2.  In cases,  however, where the  dispute arises between States parties  to
the present draft articles, one of  which has taken countermeasures  against
the other,  the State against which they  are taken is  entitled at any time
unilaterally  to  submit  the  dispute  to   an  arbitral  tribunal  to   be
constituted in conformity with the annex to the present draft articles.


Article 6

Terms of reference of the Arbitral Tribunal

1.   The  Arbitral Tribunal,  which  shall  decide with  binding effect  any
issues of fact  or law which may be in  dispute between the parties and  are
relevant under any  of the provisions of  the present draft articles,  shall
operate  under  the  rules laid  down or  referred to  in  the annex  to the
present draft articles  and shall submit its  decision to the parties within
six months  from the  date of completion  of the parties'  written and  oral
pleadings and submissions.

2.   The Tribunal  shall be entitled to resort  to any fact-finding it deems
necessary for the determination of the facts of the case.








 Article 7

Validity of an arbitral award

1.   If the validity of an  arbitral award is challenged by  either party to
the  dispute, and  if within three months  of the date of  the challenge the
parties have  not agreed  on another  tribunal, the  International Court  of
Justice  shall be  competent,  upon the  timely  request of  any  party,  to
confirm the validity of the award or declare its total or partial nullity.

2.  Any issue in  dispute left unresolved by the nullification of the  award
may, at the request of  any party, be submitted to  a new arbitration before
an arbitral tribunal to  be constituted in conformity with the annex to  the
present draft articles.


Annex

Article 1

The Conciliation Commission


1.  A list  of conciliators consisting  of qualified jurists shall be  drawn
up and maintained by  the Secretary-General of the United Nations.  To  this
end,  every State which is a Member of the United Nations  or a party to the
present draft  articles shall be invited  to nominate  two conciliators, and
the names of the persons so nominated  shall constitute the list.   The term
of  a conciliator, including  that of  any conciliator  nominated to  fill a
casual vacancy,  shall be  five years  and may  be renewed.   A  conciliator
whose term expires shall continue to fulfil any function for which he  shall
have been chosen under paragraph 2.

2.   A party  may submit a dispute  to conciliation under article  3 of Part
Three  by  a  request  to  the  Secretary-General,  who  shall  establish  a
Conciliation Commission to be constituted as follows:

  (a)  The State or  States constituting one  of the parties to the  dispute
shall appoint:

  (i)One conciliator  of the nationality  of that State  or of  one of those
States, who may or may not  be chosen from the list referred to in paragraph
1; and

    (ii)One conciliator not of  the nationality of  that State or of any  of
those States, who shall be chosen from the list.

  (b)   The State  or States  constituting the  other party  to the  dispute
shall appoint two conciliators in the same way.

  (c)   The four conciliators  appointed by the  parties shall  be appointed
within 60  days following the date  on which  the Secretary-General receives
the request.
    (d)  The four  conciliators shall, within 60  days following the date of
the last of their own  appointments, appoint a fifth conciliator chosen from
the list, who shall be chairman.

  (e)    If  the  appointment  of the  chairman  or  of  any  of  the  other
conciliators has  not been made within  the period prescribed above for such

appointment, it shall be  made from the list by the Secretary-General within
60 days following  the expiry of  that period.   Any of  the periods  within
which appointments  must be made  may be extended  by agreement  between the
parties.

  (f)  Any vacancy shall  be filled in the manner prescribed for the initial
appointment.

3.  The failure  of a party  or parties  to participate in the  conciliation
procedure shall not constitute a bar to the proceedings.

4.  A disagreement  as to whether a Commission  acting under this  annex has
competence shall be decided by the Commission.

5.  The  Commission shall determine  its own  procedure.   Decisions of  the
Commission shall be made by a majority vote of the five members.

6.  In disputes involving  more than two parties  having separate interests,
or where there is disagreement  as to whether they are of the same interest,
the parties shall apply paragraph 2 in so far as possible.


Article 2

The Arbitral Tribunal

1.  The Arbitral Tribunal referred to in articles 5 and  7 (2) of Part Three
shall  consist of  five  members.   The  parties to  the dispute  shall each
appoint  one  member,  who  may  be   chosen  from  among  their  respective
nationals.   The three  other arbitrators  including the  Chairman shall  be
chosen by common agreement from among the nationals of third States.

2.   If the appointment of the members of the Tribunal  is not made within a
period of  three months from the date  on which one of the parties requested
the  other  party  to  constitute  an   arbitral  tribunal,  the   necessary
appointments shall be made  by the President of  the International Court  of
Justice.  If the President is prevented from acting or is a national of  one
of the parties,  the appointments shall be made  by the Vice-President.   If
the  Vice-President is prevented from acting  or is a national of one of the
parties,  the appointments shall  be made  by the most senior  member of the
Court who  is not  a national of  either party.   The  members so  appointed
shall be of different nationalities and, except in the  case of appointments
made because of  failure by either  party to  appoint a  member, may not  be
nationals of, in the service of or ordinarily resident in the territory  of,
a party.

 3.   Any vacancy which may occur  as a result of death,  resignation or any
other cause shall be filled within the shortest  possible time in the manner
prescribed for the initial appointment.

4.  Following the establishment of the Tribunal,  the parties shall draw  up
an agreement specifying the subject-matter of  the dispute, unless they have
done so before.

5.  Failing  the conclusion of an agreement  within a period of three months
from the date on  which the Tribunal was  constituted, the subject-matter of
the  dispute shall  be  determined by  the  Tribunal  on  the basis  of  the
application submitted to it.

6.   The failure  of a party  or parties to  participate in the  arbitration
procedure shall not constitute a bar to the proceedings.

7.   Unless the  parties otherwise agree,  the Tribunal  shall determine its
own  procedure.  Decisions of the Tribunal shall be  made by a majority vote
of the five members.

III.  DRAFT ARTICLES ON INTERNATIONAL LIABILITY FOR INJURIOUS
      CONSEQUENCES ARISING OUT OF ACTS NOT PROHIBITED BY    
      INTERNATIONAL LAW                                     

Article A [6]*

Freedom of action and the limits thereto

  The freedom of States to carry on or  permit activities in their territory
or otherwise under their  jurisdiction or control  is not unlimited.  It  is
subject  to  the  general obligation  to  prevent or  minimize  the risk  of
causing significant transboundary harm, as  well as any specific obligations
owed to other States in that regard.


Article B [8 and 9]

Prevention

  States shall  take all  appropriate measures  to prevent  or minimize  the
risk of significant transboundary harm.





                       

  *  Articles A, B, C  and D deal with general principles.  The placement of
these articles will be  determined once all the  articles on the  topic have
been adopted on first reading.
  Article C [9 and 10]

Liability and reparation**

  In  accordance   with  the   present  articles,   liability  arises   from
significant transboundary harm caused by an  activity referred to in article
1 and shall give rise to reparation.


Article D [7]

Cooperation

  States concerned shall cooperate  in good faith and  as necessary seek the
assistance of  any international  organization in  preventing or  minimizing
the  risk of significant transboundary harm and, if  such harm has occurred,
in minimizing its effects both in affected States and in States of origin.


                                     -----________________________

  **   As  is  clear  from the  phrase  "[i]n accordance  with  the  present
articles",  the  substantive  content  of  this  article  is  left  to later
elaboration of the  articles on liability.  At  this stage, the article is a
working hypothesis of the Commission.


 

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