The International Law Commission is a central branch to the United Nations as it is the
branch of the world=s largest international
organization and is responsible for the drafting of that organization=s laws. The commission determines which areas to
legislate on in a number of ways. Some topics are chosen by the commission and others
referred to it by the General Assembly or the Economic and Social Council branches of the
UN. When the commission completes draft articles on a particular topic, the General
Assembly usually convenes an international conference of plenipotentiaries to incorporate
the draft articles into a convention which is then open to member States to become
parties. I sincerely look forward to participating in the conference with all of you and
working on the Law Commission with you.
ILC – Topic A
Sanctions
Because the UN is simply the sum of its parts (with over 185 countries) rather than a
sovereign entity unto itself, its ability to reach consensus to act decisively in a given
conflict is limited. In addition, for a number of reasons, the U.N. will not fight a war
under its own flag. When the U.N. does take action against a country, it employs passive
tactics such as sanctions. Sanctions are defined as economic or military coercive measures
adopted usually by several nations in order to force a nation violating international law
to desist or yield from its disagreeable behavior.
The U.N.¹s practice of employing sanctions has given rise to a debate on whether it
should it be legal at all for a group of countries within an international organization
such as the U.N. to impose sanctions on other countries? What if the imposition of
sanction leads to famine, shortages of vital resources, or even deaths in the sanctioned
country? The sanction issue raises questions about a country¹s rights versus the rights
of the individual human being residing in that country. Should it be legal for one country
to deprive another country of a good vital to its survival? If we assume that it will not
cause any loss for one individual to provide the other with a good, it cannot be legal, or
at least moral, for one human being to deliberately deprive another human being of a good
vital to his/her survival. There are numerous moral, ethical, and legal issues surrounding
the use of sanctions which I believe will be very enlightening for us at the Model U.N.
A prime example of modern day UN sanctions are those which have been imposed upon Iraq.
Following Iraq¹s invasion of Kuwait in 1990‹a violation of Kuwait¹s
sovereignty‹the United Nations imposed comprehensive sanctions upon the Iraqi nation.
The lifting of the sanctions was conditioned on the disarmament of the Iraqi nuclear
arsenal. First, the U.N. imposed comprehensive economic sanctions upon Iraq, prohibiting
all international trade with Iraq for the period of one year. The U.N. soon realized that
this policy was detrimental to innocent Iraqi citizens, and so proposed the "Oil for
Food Program." In 1996, the U.N. introduced the Oil for Food Program through which
the U.N. monitored Iraq¹s transfer of oil and the goods it was to receive in return for
that oil. The U.N. wanted to ensure that Iraq did not receive moneys directly for its oil,
concerned that the govenment could buy weapons and fund programs to create weapons of mass
destruction. In return for its oil, Iraq was to receive food for Iraqi people. However,
the program proved to be flawed because the amount of oil that Iraq was permitted to sell
under this new program was insufficient to meet the needs of the Iraqi people. The
Sanctions Committee, a body located within the UN, often held up supplies and the
paperwork necessary for the process to move forward. In addition, Saddam Hussein¹s
government did not distribute all of the food to the Iraqi people. Essentially, even the
Oil for Food program, a seemingly well thought of sanction plan, is still responsible for
hurting innocent Iraqis.
The two sides of the debate over sanctions become obvious through this example. Many
people are sharply opposed to to the imposition of sanctions as they may hurt innocent
people in the sanctioned country. In the case of Iraq and the U.N., even a program such as
Oil for Food does not work very well because Saddam Hussein clearly is not acting on
behalf of the best interests of his people. And so, many argue that all sanctions on Iraq
be lifted so as to benefit the greater Iraqi society.
Others argue, however, that sanctions do in fact serve an important purpose. Sometimes
sanctions can be used to deter or prevent a country from continuing or initiating behavior
the U.N. deems harmful to international peace and security. To return to my above
comparison of relations between countries to relations between humans, sometimes a human
needs to be reprimanded. As such, it can be argued that sometimes a country needs to be
reprimanded‹or more specifically, a country¹s government must be reprimanded and
discouraged from continuing to act in the harmful way it is acting. On a more pragmatic
level, sanctions can be a useful tool of bringing out changes when they are targeted at
key populations and, when they are routinely reviewed.
The GA has recently passed several resolutions calling attention to the plight of third
countries affected by sanctions. What is the position of your own country on this issue?
Is there a practical way to ensure that sanctions are selective, targeted and focused?
What position has your country taken on maintaining the sanctions regime against Iraq?
ILC : Topic B
When States Commit Crimes
The notion of State Responsibility has been on the ILC agenda since the early 1950s. The
issue is broad, overlapping many areas of international law, and deeply controversial. It
places the ILC in the position of drafting rules that potentially govern relations between
states on matters of international peace and security two subjects on which States have
vociferously protected their sovereign right to act in their own national interest. At the
same time the General Assembly has repeatedly called on the ILC to further pursue its work
on this topic, reflecting a growing interest in the world body to develop standards in
this area despite the conceptual and practical difficulties involved.
The concept of State Responsibility becomes applicable when states commit acts that
constitute a violation of their treaty obligations. The ILC continues to debate this
question under various sub-categories. They include the right of injured states to pursue
settlements and arbitration mechanisms to resolve disputes, the ability of injured states
to claim reparations, and the right of injured states to act in self-defense and the
attendant limitations on these state actions, by, in particular, international standards
of human rights.
These topics merit further research for the ramifications they might have on those states
that have unresolved border disputes, that are engaged in the act of war, and which are in
some way connected to insurgent or what the ILC refers to as "insurrectionist"
movements overseas. In every case it is important to remember that the ILC deals with
matters of public international law, and not with the laws governing relations between
private actors (as would be done by UNCTAD or the WTO).
The ILCs work around state responsibility is based on two presumptions: that States, as
entities in and themselves, can commit crimes, and that they can be held accountable for
their behaviour in law, even if not yet in practice since an authoritative world court
does not exist to "try" states.
Keeping these presumptions in mind focus in particular on the notion of Countermeasures
that is included in the ILC's Draft Articles on State Responsibility. With no
supranational policing mechanism the principle of Œself-help¹ is cemented,
encompassing two rules: firstly, that injured states have a right to respond when
internationally wrongful acts are committed against them; secondly, that these responses,
as a right to self-defense, can themselves "break the rules" in very selective
ways.
The Draft Articles elaborate on the conditions under which States can resort to
Countermeasures. Most significantly, a state is able to define itself as being injured
because there is no centralised mechanism tasked with making this determination. The Draft
Articles also define Countermeasures. They are responses by an injured state to
internationally wrongful acts committed against it. Countermeasures do not oblige the
injured state to obey all rules of international law. However they can be pursued for two
reasons only: the cessation of the injury and for reparations. The injured State may not
take measures in order to inflict punishment on the alleged lawbreaker.
The allowance in these Articles for the subjective determination of injury therefore risks
reproducing asymmetries in power between the injured state and the aggressor state. If the
injured state is weak, then its ability to demand reparations will also be weak. If the
injured state is strong then its right to engage in Countermeasures can be exploited.
Once controversial case of a state engaging in countermeasures is the reprisal policy by
Israel against terrorist raids across its borders. Since the 1950's, Israel has been
targeted by "guerrillas" crossing borders with Egypt, Syria, Jordan, or Lebanon;
initially the perpetrators were identified with the Palestine Liberation Organization,
more recently, with Islamic groups such as Hizballah or Hamas. Israel held the host state
responsible for permitting these raids and engaged in aerial and sometimes land raids in
retaliation. These raids were often criticized by other states as acts of aggression, or
alternatively as permissible acts of self-defense, but inappropriate because the
retaliation was allegedly disproportionate to the provocation or targeted at the wrong
actor. What is your country's position on Israeli acts of reprisal against terrorism?
More generally, please study on the ILC website the relevant Draft Articles, which seek to
build international consensus on the appropriate responses to international aggression.
What are the ramifications of these potential rules on the rights and responsibilities of
States in your own country? Would you wish to see these rules become law? How would you
try to change them in order to better fit your county¹s perception of national security?
Sources to consult: ILC website:
International Law Commission Report, 1996,Chapter III,
STATE RESPONSIBILITY