REPUBLIC OF HUNGARY

PERMANENT MISSION TO THE UNITED NATIONS

227 EAST 52nd STREET, NEW YORK, N.Y. 10022

55th SESSION

OF THE UNITED NATIONS GENERAL ASSEMBLY

SIXTH COMMITTEE

AGENDA ITEM 159

REPORT OF THE INTERNATIONAL LAW COMMISSION

ON THE WORK OF ITS 52nd SESSION

CHAPTER IV

STATE RESPONSIBILITY

STATEMENT BY

H. E. AMBASSADOR DR. GYÖRGY SZÉNÁSI

HEAD OF THE INTERNATIONAL LAW DEPARTMENT

MINISTRY FOR FOREIGN AFFAIRS

NEW YORK

OCTOBER 25, 2000

Mr. Chairman,

The Hungarian delegation has already had the opportunity to congratulate you and other members of the Bureau. On this occasion I would, therefore, like to confine myself to pledging our full cooperation in your efforts to steer the Committee's work to a successful conclusion. It is also my great pleasure to congratulate Mr. Chusei Yamada of Japan, the Chairman of the International Law Commission, for his able guidance of the Commission and for his lucid introduction of the first four Chapters of the Report. We pay tribute to the members of the ILC and the Special Rapporteurs for their excellent work during the fifty-second session.

My delegation commends the ILC for successfully completing the second reading of the Draft Articles on "State Responsibility". The Draft is an exemplary result of a joint effort spearheaded by Professor James Crawford, the Special Rapporteur on the topic, and the Drafting Committee. Hungary also welcomes the decision of the ILC to submit the Draft Articles for consideration, before its official adoption by the Commission. This decision has already led to a vivid and frank debate in the Sixth Committee that will put the ILC in a better position to present a finalized text.

Mr. Chairman,

Hungary plans to present its detailed views on the various Draft Articles in writing to the Commission before the end of January, next year. Therefore, at this stage I would like to make only a few comments on the following issues:

First of all, let me reiterate our flexibility with regard to the eventual form of the text. We could go along with the elaboration of a "Code of State Responsibility", which could be similar to a Convention in its content but would take the form of a General Assembly Declaration. The consensus of the international community to adopt, after decades of careful deliberation, a set of rules on state responsibility would represent a major breakthrough in the codification and progressive development of international law, even if the text were not to have the force of a legally binding instrument. We are still convinced that this important goal will be achieved and we submit that, with the successful restructuring of Part Two of the Draft, we are at a new stage in our efforts to reach this goal.

Turning now to some of the specific Draft Articles, the Hungarian delegation supports the new wording of Article 31 which makes it possible in paragraph 2 to claim reparations for different forms of injuries, material and moral alike. This is an important step forward in providing for full reparation.

Hungary supports the new wording of Article 33 on other consequences of an internationally wrongful act, containing a reference to the application of rules of international law on state responsibility, other than the Draft Articles. This represents not only an important addition in order to provide adequate protection against internationally wrongful acts of States, but is also a basic delimitation that should be preserved.

Article 37 on compensation provides for full compensation, and the obligation to cover lost profits as well, to which the Hungarian delegation attaches special importance. Article 38 on satisfactions widens the spectrum of compensation by introducing the new element, while attaching to it the necessary safeguards in paragraph 3. This provision, providing reparations for injuries, which cannot be settled through restitution or compensation, is the natural consequence of Article 31. Since the list in Article 37 is non-exhaustive it is possible to find other ways of ensuring satisfaction, as the case requires. On a related matter, Hungary would like to join with those delegations, which clearly spelled out their concerns about the possible inclusion of punitive damages.

Concerning contributory negligence, we agree with the general thrust of Article 40. We also take note of the position of the Drafting Committee that the obligation of the injured State to mitigate the damage was not clearly supported by international law. However, in our view, such a question could only be decided on a case-by-case basis. Furthermore, a decision on whether the contribution to the damage was a result of a negligent or willful act, will depend not only on the particular situation, but also, on the applicable legal instruments. Some of the legal instruments, at least indirectly, touch upon the issue of mitigation of damage. In that regard, Hungary awaits the promised commentary with great interest.

Hungary is convinced that Chapter III of the Draft concerning serious breaches of essential obligations to the international community should be retained. My delegation listened to the debate with great interest. Based on the sentiments expressed so far, we are ready to conclude that further refinement of Chapter III, but also of the related articles, is necessary to arrive at a satisfactory conclusion. It is our firm conviction that many of the concerns expressed could be alleviated through a concentrated effort that deals with the interrelated elements as a whole. The clear definition of the breaches involved, a restrictive definition of the injured State, specific rules on how responsibility could be invoked, strong safeguards against the unlawful use of countermeasures and the clear enumeration of the limits of such countermeasures would enable the international community to find consensus on this issue. Further work clearly remains to be done in this area.

Hungary wishes to emphasize that the issue of countermeasures remains a sensitive question, due to the possibility for its abuse. Hungary regards the work of the Drafting Committee in this area as a step in the right direction and it wants to highlight the following crucial requirements. Countermeasures could only be applied in a proportionate manner. The aim of countermeasures is to induce law-abiding behavior on the part of the responsible State. However, it does not mean that the injured State can use any and all measures to induce such behavior, on the contrary, it simply means that countermeasures aimed at the attainment of any other goal are, by definition, unlawful. We are also convinced that the injured State should calibrate its countermeasures in order to avoid, to the extent possible, consequences of an irreversible nature. In our view, this element could be further strengthened in article 50. By the same token, we fully agree with the general thrust of Article 51 on obligations not subject to countermeasures, even if some of its elements require some refinement.

Conditions of resorting to countermeasures may also need some refinement based on the outcome of our debate. One of the substantial issues is the question of provisional and urgent countermeasures, where we do not see a significant difference between the former and present terminology. The current wording makes it clear that an injured State may resort to such measures only in urgent and compelling cases and in order to preserve its rights. However, the special regime with regard to the application, or any special rule clarifying if, or why, these measures are more provisional than the other measures, is missing. Here also, we would like to shed some light on the relationship between the countermeasures and ongoing negotiations. While we may agree with the view expressed that the pursuance of negotiations should not in all cases preclude the continuation of countermeasures, we believe that the Commission may revisit this issue when it deals with the issue of dispute settlement mechanisms.

Finally, the Hungarian delegation attaches a special importance to the establishment of an effective dispute settlement mechanism, which is the conditio sine qua non of a well-functioning legal regime of state responsibility. We accept the ILC’s recommendation to consider the issue of dispute settlement after the adoption of the entire Draft. However, we would like to emphasize that the usefulness of the elaboration of comprehensive rules concerning such mechanism does not depend on our decision on the final format of the text. Indeed, such a set of rules would not be without merit, even if the text were not to be legally binding, but instead, were to take "only" the form of "soft law".

Thank You, Mr. Chairman.