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Since draft article 3, para, (a)2 defined the subjective element of an inter- nationally wrongful act of a State, and state of necessity included just such an element, the Commis- sion could not disregard the concept. (...) For extra-legal reasons, some people feared the potentially adverse consequences of recognizing the concept. It was, moreover, a difficult concept to define precisely. (...) If the 51 original Members of the United Nations had considered it necessary to provide for the concept of necessity, it was all the more likely that the present Members would consider it important to be able to invoke that concept. 7.

AGO (continued) ARTICLE 28 (Indirect responsibility of a State for an internationally wrongful act of another State)1 (con- tinued) 1. Mr. (...) It might be argued that the bilateralism underlying the res inter alios acta concept, and even the legal relation- ships arising out of the wrongful act of a State, excluded the indirect international responsibility of a third State, and to that extent he would agree with Mr. (...) Thus, if a State claimed that it had committed an internationally wrongful act under pressure, it could not raise a defense of necessity, but the concept of a transfer of responsibility would come into play.

The third positive aspect of the draft articles was the concept of consequences envisaged for serious breaches, a concept that had developed gradually since the end of the Second World War. (...) The articles also dealt with some of the most complicated and controversial subjects in international law, including the distinction between composite and complex wrongful acts; continuing and completed wrongful acts; the exhaustion of local remedies; the concept of State crimes; circumstances precluding wrongful acts, particularly compliance with obligations arising under peremptory norms of general international law or jus cogens; the concept of countermeasures; and the relationship between the draft articles and rules specially agreed upon by States (lex specialis) in respect of specific aspects of international law, such as those relating to human rights, international trade or environmental legislation, the law of the sea or the primacy of obligations under the Charter of the United Nations. 35. (...) Nevertheless, each of those concepts had a different rationale and a different function.

It seemed to indicate that there was an internationally wrongful act even if the conduct in question, taken alone, would not be internationally wrongful. 5. (...) The article was the first provision of chapter IV which was to be devoted to a question that the Commission had on more than one occasion agreed to study: that of the implication of a State in the internationally wrongful act of another State. In connexion with that question, the Commission had at previous sessions discussed the concepts of incitement, assistance, complicity and in- direct responsibility. (...) Perhaps the idea behind those terms could be rendered by a phrase such as "wrongful collaboration" or "wrong- ful association", in line with the reference through- out the draft articles to "internationally wrongful" acts.

Ago, for he had not found it possible to study the question of the origins of responsibility and to define the concept of the internationally wrongful act without reference to the content of responsibility. (...) The Special Rapporteur suggested certain guide- lines for resolving that delicate question, recommend- ing that the countermeasure should be proportional to the seriousness of the consequences of the wrongful act, and making use of the concept of normality for that purpose. (...) International law was based not so much on the concept of sanction and punishment as on the concept of remedying wrongs that had been committed, more often than not in such a way that the State which paid compensation did so without necessarily having to admit that it had done wrong or was to blame. 26.

A/C.6/49/SR.25 English Page 3 internationally wrongful acts ("delicts") and particularly serious wrongful acts ("crimes"). (...) Certain questions had to be answered in international legal instruments, such as whether the concept of State crimes would be recognized in international law, who would have jurisdiction if that concept was recognized and whether such responsibility differed from ordinary internationally wrongful acts. (...) It was true, however, that the expression "crime" had the clear psychological advantage of stressing the exceptional seriousness of the breach concerned, which should spur the international community to take action, either within the framework of institutions or through individual States, to defend the rights and interests of both the victim State and international community. 59. The concept of crime was an evolving one conditioned by the degree of seriousness of the internationally wrongful act.

It was apparent from the report that proportionality should be the concept underlying all of part 2. Admittedly, the concept did exist in domestic legislation, but as a logical criterion, not a legal one. (...) It was indeed desirable to establish machinery for the settlement of disputes, inasmuch as article 19 of part 1 of the draft covered the concept of an international crime. In paragraph 40, the Special Rapporteur had none the less indicated that the settlement of disputes might be limited to the deter- mination of the legal consequences of a wrongful act, in other words to the determination of the applicable 126 Yearbook of the International Law Commission, 1983, vol. (...) His own view was that identification of certain aspects of the dispute-settlement procedure would indeed facilitate consideration of the more difficult concepts, such as those relating to international crimes, or other aspects involving injury to peoples or to the interests of the international community as a whole, but it should not be a pre-condition for developing those concepts and the legal consequences of wrongful acts connected therewith.

Consent given ex post facto could be considered as forbearance to pursue the consequences of the wrongful act, but could not take away the wrongful- ness of the act. 36. (...) PINTO said that draft article 29 had logic on its side and was firmly rooted in concepts of private law. He agreed entirely that consent, in the sense not merely of knowledge but of acceptance of the risk involved, was required for the preclusion of wrongful- ness. (...) Naturally, a State could not normally claim compensation for dam- age when it had given consent to commission of the act, but it was important to consider the exception in article 29 very carefully and to examine the way in which the concept of consent was expressed. 39. Mr. AGO, replying to the comments made by Sir Francis Vallat, said that all the preceding draft articles had been intended precisely to determine the condi- tions under which there was an internationally wrong- ful act.

In order to get a clear picture of the concept of state of necessity, it was important to clear away all vestiges of jusnaturalist theories, as embodied in the concept of the "fundamental rights of the State" and, in particular, the concept of the alleged "right to existence" or the "right of self-preservation". (...) However, it was quite wrong to claim that the State that invoked a state of necessity did so to protect a right. (...) Most writers had remained favourable in principle to the admissibility of state of necessity as a justification precluding the wrongfulness of an act, but the number of writers hostile to the applicability of that concept in international law had increased (A/CN.4/318/Add.5 and 6, paras. 70 et seq.).