November 24, 2017

Statement by the Representative of Cyprus to the 6th Committee Ambassador Andreas J. Jacovides on the Report of the International Law Commission

Mr. Chairman,

The consideration of the International Law Commission’s Report has traditionally been the highlight of the Sixth Committee’s agenda and I feel privileged to have this opportunity of again participating in this debate after an interval of a few years. The visit last week of the President and members of the International Court of Justice and the presence of many legal advisers from Foreign Ministries gave a special dimension to our meetings.

I extend warm congratulations to the Commission’s Chairman, Professor Z. Galicki, the Chairman of the Drafting Committee Ambassador E. Candioti and its other officers and members and the members of the Secretariat, who service it with exceptional professionalism and dedication for an excellent report (A/54/10) which, even though unavoidably lengthy (at 419 pages), is substantive and well laid out.

Before I go any further, it is my pleasant duty to congratulate on their well-deserved election to the Commission Mr. Peter Tomka (Slovakia), Mr. Maurice Kampto (Cameroon) and Mr. Giorgio Gaja (Italy). At the same time, it is with profound sadness that we note the passing away of Minister Doudou Thiam (Senegal), the ILC’s longest serving member who has left a legacy of major contribution to its work, especially on the topic of the draft “Code of Crimes against the Peace and Security of Mankind” from which sprang the project of the International Criminal Court. The choice of Mr. John Dugard (South Africa) as the new Special Rapporteur for the topic of “Diplomatic Protection” is a felicitous one.

 

Mr. Chairman,

It has long been our view that the nature and practical possibilities afforded by the present debate is to offer an evaluation of the ILC’s Report, general comments on the topics dealt in it and to provide answers on the issues of legal policy where the Commission needs the guidance of the General Assembly and to inject an element of political direction, whenever it is appropriate and useful to do so, without going into matters of detail or drafting, except for very few points of particular interest. Matters of detail and drafting, in our view, are primarily within the province of the Commission to deal with since it has both the time and expertise to do so with the appropriate degree of deliberation, while the role of the Sixth Committee, as the political body in which all Member States are represented, is to provide as clear as possible guidance and direction especially on, though not limited to, the specific issues cited by the Commission itself in Chapter III. In this connection I would like to share the view earlier expressed in this debate that the positions of Governments stated here orally should be given no less weight than the written comments of States in response to the relevant questionnaires. Small States in particular are necessarily limited in producing written comments on a large variety of topics and so their statements in this Committee can serve also this purpose. I would also take this opportunity to express deep appreciation for the valid remarks of Sir Frank Berman whose experience, wisdom and inimitable style will be greatly missed in this Committee.

It is with these considerations in mind that my delegation will proceed with your permission, Mr. Chairman, to make its contribution and, for practical reasons, will do so in this statement on all topics in the ILC’s Report.

We are particularly grateful to the Commission Chairman, Professor Z. Galicki, for his excellent introductory statements on each topic which have been very helpful in focusing on the main points. Paragraphs 13 to 26 of the Report are also helpful in outlining the ILC’s work during this session and indicating the emphasis put on “Nationality in relation to the succession of States”, which has now taken final form and is ready for adoption subject to minor review; “State Responsibility”, which has made substantial steps forward but still presents major challenges, including in such areas as countermeasures and jus cogens; “Jurisdictional immunities of States and their property” which the Commission approached with an impressive degree of depth and thoroughness and on which some decisions need to be taken here; “Reservations to Treaties” on which further progress was made through restructuring it and otherwise; “Unilateral acts of States” is still in its initial stage but, with the welcome adoption of a concept as a starting point viz. that “a unilateral statement by a State by which such State intends to produce legal effects in its relations to one or more States or international organizations and which is notified or otherwise made known to the State or organization concerned.” We have also noted the treatment of the “International Liability” and “Diplomatic Protection” items, the planning of the work for the remainder of the quinquennium and the long term programme of work and such other topics as the split sessions; relations with the Sixth Committee, cooperation with scientific institutions, international and national organizations and individual experts on issues of international law; the traditional exchanges with the International Court of Justice, the Asian-African Legal Consultative Committee, the Inter-American Juridical Committee, and the Committee of Legal Advisers on Public International Law of the Council of Europe; and, finally, the activities regarding the undoubtedly important holding of the annual training International Law Seminar.

Allow me now, Mr. Chairman, to turn to individual topics, beginning with Chapter IV, “Nationality in relation to the Succession of States”. This is a case where we can express full satisfaction in terms of the selection of a topic meeting a real and practical need, developed through the excellent work of the Special Rapporteur, Vaclav Mikulka and, in the final stage, of the working group under Professor Galicki to the point of being a final product and completed in a relatively short time. We note and approve that the raison d’ etre of the draft articles is the concern of the international community for the resolution of nationality problems for natural persons in the case of a succession of States; and that, while nationality is essentially governed by national legislation, the competence of States may be exercised only within the limits set by international law. Indeed, we agree that the fundamental concern is the protection of the human rights of persons whose nationality may be affected by State succession and that the legitimate interests of both States and individuals need to be taken into account. A key provision in Article I is that based on article 15 of the Universal Declaration of Human Rights and is “the right of everyone to a nationality” another key provision is that in Article 16, also based on the Human Rights Declaration, that “no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”, while traditional concepts of nationality law such as the status of habitual residents (Article 14) and that of “effective link” (taken from the ICJ judgment in the Nottebohm case) is also duly taken into account (Article 19).

We particularly note that Article 3 explicitly limits the application of the present draft articles to successions of States occurring in conformity with international law. Accordingly, questions of nationality which could arise in situations of illegal occupation of territory, illegal annexation or purported separation or seccession contrary to existing treaties or other provisions of international law, are outside the scope of these draft articles.

Thus, Mr. Chairman, my delegation agrees with the ILC’s recommendation that the text be adopted as a General Assembly Declaration, while reserving our position for specific comments at the time this action is taken. We also share the Commission’s view that there is no need at this time to deal with succession of nationality of legal persons (companies, commercial entities etc.), as distinct from that of natural persons, and thus the work of the ILC be considered as concluded on this item.

 

Mr. Chairman,

Turning now to the topic of Jurisdictional Immunities of States and their Property, we welcome the report of the working group and congratulate its Chairman, Professor Gerhard Hafner, its Rapporteur Ambassador Chusei Yamada and its members for a very thorough and substantive job, in response to last year’s request by the General Assembly “for any preliminary comments [the Commission] may have regarding outstanding substantive issues” related to the draft articles adopted by the Commission in 1991 and pending since then because of continuing lack of consensus in the General Assembly. The working group, quite properly, concentrated on five main issues, identified back in 1994, namely: (1) Concept of a State for purposes of immunity; (2) criteria for determining the commercial character of a contract or transaction; (3) concept of a State enterprise or other entity in relation to commercial transactions; (4) contracts of employment; and (5) measures of constraint against State property, and produced a valuable study (pp. 360-413 of the report), together with a short background paper, by way of appendix (pp.414-416) with questions of the existence or non-existence of jurisdictional immunity in actions arising, inter alia, out of violations of jus cogens norms, in particular the argument increasingly put forward that immunity should be decided in the case of the death or personal injury resulting from acts of a State in violation of human rights norms having the character of jus cogens, particularly the prohibition of torture. We noted with particular interest the contents of the appendix, especially the two new developments, the one regarding the amendment by the United States of the Foreign Sovereign Immunity Act through the Anti-Terrorism and Effective Death Penalty Act of 1996 and the other regarding the Pinochet case in the United Kingdom. I shall revert to the issue of jus cogens in the context of State Responsibility and generally but, in the meanwhile, I note and agree with the position of the German delegation that this question is of enormous importance and it is a central part of the subject of jurisdictional immunity.

On the subject of jurisdictional immunities generally, our own view from the beginning of the consideration of this item in the Sixth Committee and in the Commission, was to favour a pragmatic approach and avoiding doctrinal differences between the absolute and restrictive immunity theories, while aiming at compromises on the outstanding issues based on realistic adjustment to contemporary requirements. State immunity is an important institution in international life and if we can achieve a generally acceptable convention this would vindicate the time and effort spent over the years in realizing this point. However, realistically, one can legitimately question the likelihood of reaching agreement in the near future. Moreover, as the United Kingdom delegation pointed out, the institutions of state immunity are tied up with the development of a modern system of trade and commerce and any attempted codification to be successful has to correspond to the modern conditions of international trade and to cover adequately all the issues that are likely to arise, including enforcement. In light of the unlikelihood of this happening in the foreseeable future, the possibility of drawing up a “Model law” offers the possibility of preserving the value of what has been achieved while leaving room for practice to develop. On this we have an open mind and let me repeat our preferred route would be through a Convention if it can be achieved.

Chapter V of the Commission’s report on State Responsibility presents us with substantial and fundamental issues and it is indicative that the bulk of Chapter III on specific issues on which comments would be of particular interest to the Commission (paragraphs 28 and 29) are devoted to those arising in the context of this very important topic.

My delegation’s position has consistently been that State responsibility has been transformed from the traditional approach of dealing primarily with injury to aliens to the present much broader context, where the interests of international public order and of the whole international community need to be duly taken into account, involving the development of such notions as jus cogens and obligations erga omnes, while, at the same time, giving due weight to the practice of States. The treatment of the subject has had a long and difficult history in the ILC and we applaud the energetic and commendable efforts of the current Special Rapporteur, Professor James Crawford, in effectively grappling with the many remaining problems, while modernizing and streamlining the text. We would like to share the confidence expressed by the Nordic countries that the second reading of the draft articles will be completed within the term of office of the Commission’s present members, i.e. by 2001.

On the whole, we are in agreement with the Special Rapporteur’s approach, in substance and in drafting. We can see the practical reason for a distinction between States specifically injured by an internationally wrongful act and other States which have a legal interest in the performance of the relevant obligations but do not suffer economically quantifiable injury. While the legal interest exists for both categories of States, in the practice of States it is the specifically injured State that has the right to such reparations. We subscribe to the view that a wrongdoing State must provide compensation to the specifically injured State, to include, in addition to the principal amount of pecuniary damage, interest and loss of profit. On the issue of countermeasures, I shall revert with some more general remarks. As far as the question of plurality of States involved in the breach of an international obligation we would prefer that it be dealt with within the framework of the draft articles and agree with the Special Rapporteur’s approach to draft Article 27.

Our position on countermeasures, in terms of their value and their proper role within the overall topic of State Responsibility, has been stated in the past and remains that the scope of countermeasures should be restricted and narrowly defined since they lend themselves to abuse at the expense of weaker states; that they should not be punitive but aimed at restitution and reparation/compensation rather than punishment; that there should be extensive third party dispute settlement system and be applied, if at all, objectively and not abusively. We also stress that armed countermeasures are prohibited under Article 2 para.4 of the UN Charter, which has become a customary rule of international law and, in this connection, I would remind the well-known dictum of the ICJ in the Corfu Channel case viz. “the Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has in the past given rise to the most serious abuses and such as cannot, wherever be the present defects of international organization find a place in international law”; that other rules of jus cogens, including human rights basic rules, are not subject to derogation equally in the case of countermeasures.

Thus we agree with the Nordic States that limitations should be imposed on the taking of countermeasures, including refusal by the wrongdoing State of an offer to settle the matter through a binding third party procedure as a condition for resorting to such measures. Indeed, effective third party dispute settlement procedures generally and more particularly in the context of resort to countermeasures, are in our view a sine qua non in modern international law and an indispensable protection for small and militarily weaker states.

 

Mr. Chairman,

In the context of State responsibility but also earlier on, in the context of Jurisdictional immunities, “acts of a State in violation of human rights norms having the character of jus cogens, particularly the prohibition of torture” (p.414 of the Report), we come across frequent references to jus cogens or peremptory norms of international law. This is not the occasion to elaborate but it is our view that the international community, having adopted the notion in the Vienna Convention on the Law of Treaties in 1969, needs to also take the next logical step of giving exact legal content and to authoritatively define as clearly as possible what comes under the rubric of jus cogens. As it stands, it means a lot to some and very little to others and this lack of clarity and predictability does not serve well the purpose for which this important concept was created and incorporated into the modern international law (see UN doc. A/CN.454 at 16, 26, 105-119, UN doc. A/C.6/47/SR.21).

In this respect, we have noted with interest the relevant discussion in the ILC on the basis of the Report of the Chairman of the Drafting Committee. The issue of consent, which must in any case be freely given, should be approached with caution since the very essence of the notion of peremptory norms is that they cannot be derogated from by Agreement between the parties inter se because this would be contrary to international public policy. Jus cogens needs to be clarified not eroded.

The relationship between the effect of jus cogens and that of Article 103 of the UN Charter should also be made clear. Article 103 goes to incompatibility and dictates that in case of conflict with a treaty the Charter prevails, while the effect of jus cogens is more drastic in that if established it nullifies the offending treaty.

On the new topic of Reservations to Treaties, Chapter VI of the Report , we have followed the very useful work carried out under the able leadership of Professor Alain Pellet. We share the view that the basic provisions on reservations to treaties are to be found in the Vienna regime on the Law of Treaties (i.e. those of 1969, 1978 and 1986) and agree with the approach taken through a Guide to Practice, rather than a more rigid and formal document. We encourage the Special Rapporteur to continue and complete his work on this topical and interesting subject.

Likewise, we have followed the work commenced on the topic Unilateral Acts of States, Chapter VIII of the Report. I have already indicated our agreement with the basic concept and we express the hope that further progress will be made once the questionnaire (in para.594 of the Report) is replied to, thus facilitating the Special Rapporteur Mr. Victor Rodriguez – Cedeno to continue his useful work by providing the views and practice of States.

On the topic of International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law, Chapter IX of the Report, we appreciate the useful work done by the Commission on the issue of prevention and the duty of due diligence and look forward to fruitful progress, under the able leadership of Mr. P.S. Rao, the Special Rapporteur, on second reading and would take a position on the next step to be taken to finalize this topic which dates back to 1978.

I have already touched upon the contents of the remaining Chapter X which indicates that the Commission is on the right track in its planned future activities and contacts as well as the by now established and very useful International Law Seminar.

In conclusion, Mr. Chairman, may I observe that during the consideration of the ILC Report, traditionally the highlight of the Sixth Committee’s Agenda, much other activity in the international legal field has centered around this debate. During the past two weeks, in addition to the debate on the ILC’s report, we have been fortunate to have had a visit of the President of the ICJ and his colleagues, the consideration of the Report of the ICJ in Plenary and the elections to the ICJ, the uniquely interesting informal meetings of the Legal Advisers to Foreign Ministries, the meeting of the AALCC Legal Advisers, and even outside the United Nations, the annual meeting of the American Arbitration Association together with the World Bank’s ICSID and the International Chamber of Commerce Court of Arbitration and a special meeting of the Council on Foreign Relations on the possibility of criminalizing of biological and chemical weapons. The common denominator of all this commendable activity serves the very useful purpose of promoting international legal order. To us in Cyprus this is a source of great satisfaction and we feel privileged to play a role, however modest, to this end.