The codification efforts earlier undertaken by the League of Nations, and described in the preceding Chapter, were taken up by the United Nations as soon as it was founded. The ILC was mandated by the General Assembly to codify and progressively develop inter national law, and from its first session in 1949 the ILC placed the subject of State responsibility on the list of provisional topics considered suitable for codification.1
The ILC appointed FV García Amador as Special Rapporteur in 1955 when the General Assembly re-launched the idea and invited the ILC ‘to undertake the codification of the principles of international law governing State responsibility’.2 Between 1956 and 1961, García Amador presented six reports to the ILC, embodying a complete set of draft articles. But this significant work provoked strong criticism and was not taken into account by subsequent Special Rapporteurs. Its relevance should nevertheless not be neglected in order to understand the travaux of the ILC on responsibility, in particular the approach chosen as well as the form and content finally adopted.
1 The limited approach and content of García Amador’s draft articles
At the 8th Session of the ILC, García Amador presented a preliminary report,3 containing a general survey of the state of the law and analysing its development. García Amador stressed that international responsibility does not merely entail a duty to make reparation for injuries caused, but that it can equally have the consequence of sanctions or punishment (p. 70) of the responsible entity. However, given important criticisms on this point, the idea of ‘criminal’ responsibility was not further developed by the Special Rapporteur.4
According to García Amador, the dominant feature of the development of the law of responsibility concerned the intervention of international organizations and of individuals on the international level. The choices made by the Special Rapporteur in determining the scope of his work, and in developing the content of his draft articles was clearly influenced by a consistent tendency to accord a special place to individuals in the international legal order.
(a) Choosing a particular aspect of responsibility
García Amador thought that a complete codification of the subject area was not immediately possible due to the workload of the ILC as well as the size and diversity of the problems that international responsibility entailed. He therefore proposed that the Commission should carry out the task employing a gradualist approach. Thus, he preferred to focus on a particular aspect of State responsibility and limited his work and research to the ‘responsibility of States for damage caused to the person or property of aliens’.5 He justified this approach partly on the basis of the development of international law as he had set it out in his preliminary report and partly by the fact that this aspect of responsibility was most apt for codification.6 In fact, he considered these specifi c rules to be the ones which were most developed in doctrine, private codifications and international case law.
The most significant crystallization of rules on international responsibility derived from the arbitration case law at the beginning of the 20th century and after the World Wars. This case law, developed by mixed commissions and tribunals, is essentially the result of a struggle involving ‘the relations between the strong and the weak’,7 ie between North American and Latin American States. The arbitrators or commissioners were principally concerned with claims based on harm caused to foreigners after uprisings or internal revolutions. On the basis of this case law, private codifications and international legal doctrine both concentrated their efforts on this specific aspect of responsibility. Moreover, in 1956 the ILC Secretariat asked the Research Centre of Harvard Law School to revise and potentially update a draft convention8 which had already been drawn up in 1929 in preparation for the Hague Conference of 1930.9
The approach chosen for the codification was therefore not revolutionary. It simply integrated the trends and legal issues of the time, which were marked by the case law of the early mixed commissions resolving conflicts between Northern States and Latin American States. However, the approach remained controversial and risky, especially because the Latin American States regarded the case law as having been effectively imposed upon them.
(p. 71) (b) Principles governing State responsibility for damage caused to foreigners
According to García Amador’s draft articles, State responsibility is engaged if damage is caused by an act or omission contrary to international law (article 2).10 Damage remained central to his conception of responsibility, which understood responsibility as comprising only a duty to make reparation. But this classical conception of responsibility was nevertheless limited to the specific area of codification chosen by the Special Rapporteur. The basis for responsibility does not lie in the violation of any rule of international law, but only in the violation of those rules directly concerned with individuals. Emphasis was therefore placed on the idea of human rights and fundamental liberties that constitute, in the opinion of García Amador, the conciliation of the more classical principles of the protection of foreigners—equality of treatment between foreigners and nationals—and the minimum standard of protection.
Nevertheless, his draft did not confine itself to setting out this principle. García Amador thought that these different fundamental rights and liberties and the acts and omissions that give rise to their violation should also be codified in detail. This approach was favoured since he was of the opinion that ‘the draft prepared by the Commission should be self-sufficient, and should not constitute a merely subsidiary instrument which leaves the final solution of the problems to the very principles and rules of international law which it is supposed to assemble and formulate in an ordered and systematic form’.11
His draft therefore specified the legal rules which govern the conduct of the State in relation to foreigners and defined the acts and omissions that will engage State responsibility. These were denial of justice and certain cognate acts (articles 3 to 6), negligence and other omissions that concern the protection of foreigners on the territory of the State (articles 7 and 8), and breaches of economic rights of foreigners, such as measures of expropriation and nationalization (article 9), non-performance of contractual obligations (article 10), and repudiation or cancellation of public debts (article 11). Essentially, the emphasis was placed on the codification of primary rules of public international law, which turned out to be an impossible task (see Chapter 9).
Another consequence of this approach appears in the rules concerning international claims which are the only mechanism that may result in the implementation of the kind of responsibility envisaged in García Amador’s draft. In fact, he criticized the traditional procedure of diplomatic protection (which consists of the simple endorsement of the claim by the State of nationality) as a legal fiction that created many technical difficulties. Thus he only maintained it as a subsidiary procedure (article 22).
Bearing in mind the development of international law and the coherence of the system of responsibility, García Amador was convinced that it was necessary to give a new status to the individual. Consequently, he proposed to accord the individual, as the holder of the breached right and the resulting claim, a right of direct recourse before competent international bodies (article 21). These bodies would, however, be created by treaty for this purpose between the defendant State and the State of nationality of the individual, or by agreement between the individual and the defendant State. In this way, the discretionary power of States to accept such direct claims would not be undermined. The holder of the international claim would however not be the State, but the injured individual.
References(p. 72) Despite the importance of the work, the ILC, being at the time preoccupied with the codification of other areas of international law, only briefly and superficially discussed García Amador’s reports and proposals.12 Admittedly, the Commission was at the time dealing with other subjects of at least the same complexity, such as the law of the sea, the law of treaties, and diplomatic and consular relations. Nevertheless, the justification given for the persistent neglect of García Amador’s work is not entirely satisfactory. It was probably a polite way of getting rid of a draft that was highly criticized and was bound to fail. This is confirmed by the fact that the work of García Amador was not retained at all as a basis for the future work of the Commission in relation to the topic of State responsibility.
2 Criticisms and rejection of García Amador’s draft
García Amador’s work attracted many criticisms. These criticisms were expressed both by the members of the ILC in the rare recorded discussions on the draft and by the Member States of the United Nations. They were directed at the content of the draft and at the underlying approach.
(a) Criticisms concerning the place accorded to the individual
The position that García Amador accorded to the individual on the international level was the subject of strong criticism. His stance concerning the evolution of international law as set out in his preliminary report met with significant disagreement within the ILC. It was especially the question of recognizing subjective rights of the individual in international law (a development in international law that he strongly approved of )13 that caused important objections on part of other members. Elevating the individual to the rank of a subject of international law14 clearly went beyond the ILC’s mandate.
ILC members equally opposed the idea that State responsibility for injuries caused to foreigners could only be invoked as a result of the violation of a fundamental human right. Only very few legal instruments recognized specific rights for individuals at the time. García Amador’s attempt to accord greater importance to these rules by integrating them into general international law went beyond his codification mission and even beyond the progressive development of the law at that time.
The same is true for the proposed innovations in the procedures for international claims. The idea of considering the individual as the claimant in title (reducing diplomatic protection to a subsidiary level) was seen to overturn the international legal order, even though the principle of direct access for individuals to international courts and tribunals seemed to be counter-balanced by specific conditions that governed the initiation of these proceedings, in particular the consent of the concerned States. García Amador justifi ed his proposals by his analysis of specific courts, such as the Central American courts and the mixed arbitration tribunals.15 But these mechanisms in no way expressed the (p. 73) opinio juris of the time and were even in contradiction with the consistent case law of the PCIJ and the ICJ.16
(b) An unsuitable approach to codification
The draft articles were not only criticized for the rules set out by the Special Rapporteur, but also for the general approach he had chosen. Opinions were divided on whether the limitation of the draft to a system of State responsibility for injuries caused to foreigners was appropriate. On the one hand it was clear that a codification of international responsibility in its entirety was a considerable project. García Amador’s limited approach was therefore supported by various members of the ILC, as well as in the Sub-Committee on Responsibility chaired by Ago in 1963.17 But on the other hand, reservations concerning the absolute exclusion of other aspects of international responsibility were expressed. The draft seemed unsatisfactory in light of General Assembly Resolution 799(VIII) since it did not deal with the consequences of the violation of norms of international law that exclusively concern States, such as, for example, the violation of international treaties, or, more specifically, violation of the United Nations Charter and the law relating to international peace and security.
Another criticism concerned the fact that the draft only briefly mentioned the causes, forms, and fundamental problems of State responsibility. In fact, the Special Rapporteur refused to take a stance on several sensitive issues, such as the character of international responsibility (objective responsibility or responsibility for fault), State responsibility for the act of another State, or the consequences of an internationally wrongful act other than reparation. For García Amador these were academic issues: only a few articles concerning general problems of responsibility were included in his draft: imputability (articles 12–16), exonerating and extenuating circumstances (article 17), and the nature and amount of reparation (article 26). Nevertheless, the choice of a pragmatic approach and the limitation to obligations relating to the treatment of foreigners could not excuse the failure to examine these core problems in the general system of responsibility.
Moreover, the codification work was rendered more difficult by the fact that the substantive rules (concerning the treatment of foreigners and their breach) were not categorically separated from the study of rules concerning responsibility properly so-called. Even though the Special Rapporteur was conscious of the distinction between these two types of rules (which would come to be called primary and secondary rules), he preferred to mix them since he was anxious to construct a self-sufficient draft. Such an approach was impossible to carry out as well as illusory, especially in an area that concerns the treatment of foreigners: it added to the difficulties in determining general rules on State responsibility, those concerning the specific area chosen by the Special Rapporteur, ie the treatment of aliens. The issue of the treatment of foreigners not only caused opposition on the part of Latin American States, which are traditionally sensitive in that regard, but also the opposition of socialist States that were hostile to the idea of any individual rights of an exclusively economic character.
References(p. 74) García Amador’s approach and his draft still constitute a considerable and significant work. But for the purpose of codifying the rules and principles governing State responsibility, the ILC had reached a cul-de-sac. At the end of García Amador’s term in 1962, the ILC decided not to take up his reports, commentaries, and proposals in its future work on State responsibility but to start work afresh.18 García Amador’s work was shelved.
2 GA Res 799 (VIII), 7 December 1953.
3 FV García-Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, 173.
4 FV García-Amador, Second Report on State Responsibility, ILC Yearbook 1957, Vol II, 104, 105 (para 2).
5 FV García-Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, 173, 221.
7 PC Jessup, A Modern Law of Nations (New York, MacMillan, 1958), 96.
8 See the draft presented in 1961, reproduced in R Ago, First Report on State Responsibility, ILC Yearbook 1969, Vol II, 125, 142.
9 Reproduced in FV García-Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, 173, 229–230.
10 See the final draft and commentaries, FV García-Amador, Sixth Report on State Responsibility, ILC Yearbook 1961, Vol II, 1, 46ff.
11 FV García-Amador, Second Report on State Responsibility, ILC Yearbook 1957, Vol II, 104, 107 (para 10).
12 Report of the ILC, 21st Session, ILC Yearbook 1969, Vol II, 203, 229–230 (para 67).
13 FV García-Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, 173, 197ff.
14 See FV García Amador, ‘State Responsibility—Some New Problems’ (1958-II) 94 Recueil des cours 421.
16 Mavrommatis Palestine Concessions, 1924, PCIJ, Series A, No 2, p 7, 12; Serbian Loans, 1929, PCIJ, Series A, No 20, p 6, 17; Panevezys-Saldutiskis Railway, 1939, PCIJ, Series A/B, No 76, p 4, 16; Nottebohm, Second Phase, Judgment, ICJ Reports 1955, p 4, 24.
17 ‘Report of the Sub-Committee on State Responsibility ’, ILC Yearbook 1963, Vol II, 227, 228 (para 5).
18 Report of the ILC, 21st Session, ILC Yearbook 1969, Vol II, 203, 231ff (paras 72ff).