Some Observations on the New Proposal on Dispute Settlement

Vladlen S. Vereshchetin ¹

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I. The Scope of the Proposed Articles

Professor Arangio-Ruiz in his Fifth Report on State Responsibility and the Draft Articles contained therein proposed a three-step or three-tiered system for the settlement of disputes between States. The scheme envisaged would entail an initial attempt at conciliation, followed if necessary by arbitration, and would provide a final mechanism for judicial settlement. The first question that comes to mind when reading these proposals is the scope of their application. Are they intended to cover the whole of Part Three of the Draft Articles, which concerns the settlement of disputes and the implementation (mise en _uvre) of international responsibility, or are they intended to deal only with one important issue, namely the settlement of disputes relating to counter-measures (reprisals)? The debate that followed the oral introduction of the Fifth Report to the ILC showed that this point was not clear to many members of the Commission.

In three informal papers presented in the course of the 45th session of the ILC, the Special Rapporteur tried to clarify his intentions. In particular, in a paper dated 14 June 1993 the Special Rapporteur stated that:

the envisaged third party procedures would cover not just the interpretation/application of the Articles on counter-measures but the interpretation/application of any provision of the future convention on State Responsibility² (author's emphasis).

This explanation gave birth to other questions and uncertainties. It is one thing to propose a compulsory and binding third party settlement procedure for disputes relating only to counter-measures (which in itself would be an important innovation) but quite another to propose the same procedure for all the disputes which may arise out of alleged breaches of any international obligation.

Besides, any impartial reader of the Report and the articles in issue will certainly note that, despite the above clarification given by the Special Rapporteur, the Report and the Articles themselves deal primarily, if not exclusively, with disputes intimately tied up with counter-measures. Thus in paragraph 74 of the Report the Special Rapporteur unequivocally stated the following:

The `triggering mechanism' (mécanisme déclencheur) of the settlement obligations the parties would be subjected to under the proposed Part Three is neither an alleged breach of a primary or secondary rule of customary or treaty law nor the dispute that may arise from the contested allegation of such a breach. It is only the dispute arising from a contested resort to a counter-measure on the part of an allegedly injured State and possibly a resort to a counterreprisal from the opposite side which triggers the dispute settlement system.³

If we take a look at the text of the proposed Draft Articles, we immediately see that, unless the present wording is changed, the Articles can be applied only after a dispute has arisen following the adoption of a counter-measure, thereby excluding their use in cases of other disputes.⁴ Further, the Special Rapporteur insisted that the Drafting Committee deal with the proposed Articles before completing its work on Part Two, which concerned substantive consequences of State responsibility. This also suggests that the proposed procedure is primarily devised to place conditions on the lawfulness of the resort to counter-measures.

However, it is not clear why at the last moment the Special Rapporteur decided to spread the proposed three-step compulsory system to the whole area of State responsibility in the above-mentioned papers introduced during the 45th session of the ILC.

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1 Professor of International Law (Russian Academy of Sciences, Institute of State and Law, Moscow); Member of the International Law Commission.

2 Informal paper sent to the ILC's members by the Special Rapporteur, 14 June 1993, para. 4.

3 Fifth Report on State Responsibility by Mr Gaetano Arangio-Ruiz, Special Rapporteur. A/CN.4/453, 12 May 1993, para. 74.

4 See Article 1 which opens the three-step procedures with the following words: `If a dispute which has arisen following the adoption by the allegedly injured State of any counter-measure against the allegedly law-breaking State has not been settled...' (emphasis added). A/CN.4/453/Add.1, 28 May 1993, 2.

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