99-07293(E)310399260499
United Nations A /CN.4/498
General Asmbly社区换届
Distr.:General
qq换绑17March 1999
English
Original:English/French International Law Commission
Fifty-first ssion
Geneva,3May–23July 1999班会课教案
Second report on State responsibility
by Mr .James Crawford,Special Rapporteur
Contents
Paragraphs Page
I.
Scope of the prent report .................................................13II.Review of draft articles in Part One .........................................
2–1563A.Part One,Chapter III:Breach of an International Obligation ..............
2–15631.Introduction ....................................................
2–43(a)
Overview .................................................2–33(b)
Comments of Governments on Chapter III as a whole ..........442.Review of specific articles in Chapter III ..........................5–148
5(a)Article 16:Existence of a breach of an international obligation .5–15
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5(b)Article 17:Irrelevance of the origin of the international obligation breached ........................................16–26
10(c)Article 19(1):Irrelevance of the subject matter of the obligation breached .................................................27–34
14(d)Article 18(1)and (2):Requirement that the international obligation be in force for the State ...........................35–51
16(e)Articles 20and 21:Obligations of conduct and obligations of result ....................................................52–80
23(f)Article 23:Breach of an international obligation to prevent a given event ...............................................
81–92
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(g)Articles18(3)to(5)and24to26:Completed and continuing93–13540
(h)Article22:Exhaustion of 136–14857
3.Other issues relating to breach of an .149–15362
(a)The spatial effect of international obligations and questions of
<.150–15362
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(b)Possible distinctions between breaches by reference to their
<.154–15564 4.Summary of proposals concerning Chapter III. (15665)
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The Special Rapporteur would like to thank M Pierre Bodeau,Rearch Associate,Lauterpacht 1Rearch Centre for International Law,University of Cambridge,for his substantial assistance in the preparation of this report,and The Leverhulme Trust for its financial support.A group of younger scholars (with financial assistance from the Humanities Rearch Board of the British Academy)provided assistance with the literature on State responsibility in various languages:they were Associate Professor Andrea Bianchi,University of Siena;Professor Carlos Esposito,Autonomous University of Madrid;Professor Yuji Iwasawa,University of Tokyo;Dr.Nina Jorgenn,Inns of Court School of Law,London;Ms.Yumi Nishimura,Sophia University;Dr.Stephan Wittich,University of Vienna.
See First Report,A/CN.4/490/Add.4–6.
2Since the First Report,further Government comments have been received:e A/CN.4/488/Add.3and 3A/CN.4/492.So far as the relate to articles 16ff.,they are taken into account in what follows.It is propod to rerve discussion of further comments on draft articles 1to 15until all the draft articles have been dealt with,at which point they will have to be looked at again in their enmble.For the travaux on Chapter III e:Ago,Fifth (1976),Sixth (1977)and Seventh (1978)reports;4Yearbook ...1978,vol.I,pp.232–237(plenary debate);ibid.,pp.269–270(report of Draftin
g Committee);ILC report on the work of its thirtieth ssion (1978),pp.184–186(summary of the travaux );Yearbook …1976,vol.II (Part Two),pp.78–122,Yearbook …1977,vol.II (Part Two),pp.11–50,Yearbook …1978,vol.II (Part Two),pp.81–98(text of the draft articles and commentaries thereto).
Article 19(2)–(4)deals with the definition of international crimes of States.The issues it rais are 5addresd in the context of the discussion on the distinction between “criminal”and “delictual”responsibility (e,for the First Report,A/CN.4/490/Add.1,Add.2and Add.3).3
I.Scope of the prent Report 1
1.The prent report continues the task,begun in 1998,of systematically considering 2the draft articles in the light of the comments of Governments and developments in State practice,judicial decisions and in the literature.In later parts of the report it is also propod to deal with certain general issues raid by Parts Two and Three of the draft articles,and to begin considering the articles in Part Two.3
II.Review of draft articles in Part One
A.Part One,Chapter III:Breach of an International Obligation
1.Introduction
(a)Overview
2.Chapter III of Part One consists of 11articles dealing with the general subject of “breach of an international obligation”.The matters dealt with in Chapter III on analysis fall into five groups:4
(a)Articles 16,17and 19(1)deal with the notion of breach itlf,emphasising the 5irrelevance of the source of the obligation or its subject matter;
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(b)Article 18(1)and (2)deals with the requirement that the obligation be in force for the State at the time of its breach;
(c)Articles 20and 21elaborate upon the distinction between obligations of conduct and obligations of result,and in similar vein article 23deals with obligations of prevention;
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There is almost no systematic treatment in the literature of the subject of breach of international 6
obligations as such.Breach of treaty has been studied to some extent:e in particular Sir Gerald Fitzmaurice’s Fourth Report on the Law of Treaties,Yearbook …1959,vol.II,pp.37–81,which dealt with “The Effects of Treaties”.That report was never debated by the Commission,and although certain aspects of it were subsumed by his successor,Sir Humphrey Waldock,and are now included in the Vienna Convention on the Law of Treaties;tho relating to non-performance of obligations arising from treaties were left to be dealt with in the framework of State responsibility.On breach of treaties e also S.Ronne,Breach of Treaty (Cambridge,Grotius,1985);P.Reuter,Introduction au droit des traités (PUF,Paris,3rd edn.,ed.Cahier,1995)chap.4(who nevertheless conflates breach and invalidity under the rather unhelpful title of “non-application des traités ”).A/CN.4/488,p.46.7
Ibid.8
A/CN.4/492.See also the comments made by some Governments (Austria,Byelorussian SSR,Canada,9Chile,Mali,the Netherlands,Ukrainian SSR,Union of Soviet Socialist Republics and Yugoslavia in Yearbook …1980,vol.II,Part One,pp.87–106;Bulgaria,Czechoslovakia,Federal Republic of
Germany,Mongolia and Sweden in Yearbook …1981,vol.II,Part One,pp.71–78)when Chapter III was first adopted.
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(d)Articles 24to 26deal with the moment and duration of breach,and in particular with the distinction between continuing wrongful acts and tho not extending in time.They also develop a further distinction between composite and complex wrongful acts.Article 18,paragraphs (3)to (5),ek to specify when continuing,composite and complex wrongful acts have occurred,and deal with issues of intertemporal law in relation to such acts;
(e)Article 22deals with an aspect of the exhaustion of local remedies rule,which is analyd within the specific framework of obligations of result.
For reasons that will emerge,it is propod to deal with the articles in this order.设计策划
3.Taken together,the articles in Chapter III ek to analy further the requirement,already laid down in principle by article 3(b),that in every ca of State responsibility there must be a breach of an international obligation of a State by that State.But there is a difficulty in taking this analysis much further without transgressing the distinction between primary and condary rules,on which the draft articles as a whole are founded.In determining whether there has been a breach of an obligation,consideration must be given above all to the substantive obligation itlf,its preci formul
ation and meaning,all of which fall clearly within the scope of the primary rules.However the principles and distinctions elaborated in Chapter III are intended to provide a framework for that consideration,and to the extent that they do so,Chapter III can have a uful function.6
(b)Comments of Governments on Chapter III as a whole
4.No comments call into question the need for Chapter III as a whole.But the United Kingdom of Great Britain and Northern Ireland express concern that “the fineness of the distinctions drawn [in Chapter III]between different categories of breach may exceed that which is necessary,or even helpful,in a statement of the fundamental principles of State responsibility”.Germany,summarizing its comments on individual articles,notes that (in 7addition to article 19)Chapter III contains “a number of provisions that should be revid or redrafted”.Japan complains that the categorization of international obligations in Chapter 8III contains “excessively abstract concepts ...laid down in unclear language”;in its view the difficulty of drawing the distinctions “would be counter-productive to any effort to ttle a dispute”.9
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The commentary to article 16,para.(2),stress “the autonomy of international law”in relation to 10br
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each,but international law also determines the question of attribution:e First Report,
A/CN.4/490/Add.5,para.158.It is true that in doing so it takes into account the provisions of internal law as to the status of persons acting on behalf of the State:ibid.,para.167.But provisions of internal law are relevant in determining whether there has been a breach of an obligation.In both respects the dominant principle is that stated in article 4:e First Report,A/CN.4/490/Add.4,paras.140–143.As in the Corfu Channel Ca ,e I.C.J.Reports 1949,p.4,at p.22.
11See para.9(c)and (d)below.
12Commentary to article 16,para.(4).
13Ibid.,para.(5).
14Ibid.,paras.(6)–(7).
15Ibid.,para.(7).1652.Review of specific articles in Chapter III
(a)Article 16:Existence of a breach of an international obligation
5.Article 16provides as follows:
“There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation.”
6.Article 16repeats within the framework of Chapter III,but in slightly different language,the element already expresd in article 3(b).Under article 3(b),an internationally wrongful act occurs when conduct attributable to a State “constitutes a breach of an international obligation of [that]State”.But article 16specifies the element of breach a little further,identifying as a breach (and thus as wrongful)all conduct which “is not in conformity with what is required of”the State by the obligation in question.This element is sometimes described as the “objective”element of State responsibility ,as compared with the requirement of attribution which is described as the “subjective”element.The notion of State responsibility as focusing on the right (le droit subjectif )of the injured State is discusd further in the context of article 40and its definition of “injured State”.But there are other difficulties in the dichotomy between “subjective”and “objective”.After all,attribution is a legal process,and is in that n “objective”.In addition,the existence of a breach of international law 10may depend on the knowledge or state of mind of the actor(s)for who conduct the State is responsible.In such cas some mental element is attributed to the State as a basis for its responsibility ,which is thus,in one n at least,“subjective”,although still in principle 11governed b
y international law.Moreover,the same act may be a breach of a treaty vis-à-vis one State but lawful,or even required,under a treaty with another State:in such cas the 12notion of “breach”has an inter-subjective element which is missing in relation to attribution.For the reasons,the terminology of “subjective”and “objective”elements of responsibility is confusing and is best avoided.
7.The commentary to article 16justifies the u of the term “not in conformity with”,noting that “it express more accurately the idea that a breach may exist even if the act of the State is only partially in contradiction with an international obligation incumbent upon it”.It goes on to distinguish breach of an international obligation from a breach of comity,1314or of a contract between a State and a private person or corporation,or generally of “legal 15obligations governed by a legal order other than the international legal order”.It notes the 16need for compliance with other articles of Chapter III in order to establish a breach,but says nothing about the relationship between Chapters III and V.
8.There have been only a few Government comments on article 16.France rais the question of breach of an international obligation which is overridden by “an obligation considered to be superior”,citing as an example Article 103of the Charter of the United
