October 23, 2018

Statement by the Representative of Cyprus to the 6th Committee Ambassador A.J. Jacovides – Report of the International Law Commission (State Responsibility)

Mr. Chairman,

At the outset, allow me to extend to you and the other members of the Bureau our warmest congratulations. Your long experience and skill have been evident in the conduct of the Sixth Committee’s proceedings.

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 again participate in this debate.

My present statement will address primarily the State Responsibility item, which has rightly been the focal point of the Commission’s attention this year.

Before I go any further, I wish to extend congratulations to the Commission’s Chairman, Ambassador Chusei Yamada, for his leadership and to thank him for his clear and most helpful introduction of the first four chapters of the Report in his statement earlier this week. I also pay tribute to the Director of the Codification Division and his colleagues for their excellent work in producing a report which is up to its usual high standards.

Allow me first to make a general observation. I had stated ten years ago (in fact, in the International Law Commission on 6 June 1990) that, unlike the earlier approach when State responsibility concentrated primarily on the narrow topic of responsibility for injury to aliens, “with the development of jus cogens, even though as yet undefined and its acceptance in the 1969 Vienna Convention on the Law of Treaties, and the existence of hierarchically higher rules as set out in the United Nations Charter, the topic of State Responsibility is placed on a much broader foundation and it is now recognized, also by the International Court of Justice, that there exist obligations erga omnes and that the interest of the whole international community and of international public order need to be taken into account. State Responsibility has thus been transformed as a proper expression of the application of progressive development. The Commission must ensure that the expectations of the international community and in particular of the new States that came into existence after the classical rules of international law on this topic were formulated, are not disappointed.”

In our view, this position was, and is still valid and sustainable. While it is understandable that the pendulum may swing backwards toward the middle ground from extreme and controversial positions in the light of the constant evolution of international law, care should be taken not to allow it to swing back too far to the traditional conventional approach at the expense of progressive notions, imported into the law largely as a result of the impact of newly independent states. Whether the final outcome of the Commission’s work, hopefully to be completed by the end of this Commission quinquennium in 2001, passes this test remains to be seen. As of now, the jury is still out.

Turning to the current text, in Chapter IV of the Report (A/55/10), I would like to congratulate the Special Rapporteur, Professor James Crawford, for doing an outstanding job with his customary energetic style (as we also witnessed in the context of his work on the draft Statute for an International Criminal Court a few years earlier). He succeeded in modernizing and streamlining the text so that, to use the felicitous expression of Michael Wood of the UK “the former rather baroque architecture has been replaced by more classical lines.”

While compromise solutions have been put forward to meet some of the problems in the earlier text, several issues, including some basic ones, remain outstanding. Herein lies the usefulness of the present debate whereby the representatives of States provide the necessary guidance to the Commission, as indeed through the written comments that the Commission has requested and is awaiting for before embarking on the final lap of the exercise next year. I believe that we have had a useful and constructive debate and the observations which follow are intended to provide our contribution in this regard.

On the basic question of what form the draft articles would take, we (together with many other States, notably the Nordic States) would prefer that they be adopted as a legally binding convention, alongside with such major codification projects as the Law of Treaties, the Law of the Sea and, most recently, the Rome Statute for an International Criminal Court. The subject is too important and too much time and effort have gone into it to have it treated in a lesser fashion, such as a Model Law or a Declaration. However, we are aware that international lawmaking, as indeed politics, is the art of the possible and therefore we are not necessarily precluding any other alternatives, provided that our basic concerns are satisfied.

Part of the reason why we take this position as to the form of the final product, is that we have always, persistently and consistently, advocated the position that all multilateral law-making treaties, concluded under the auspices of the United Nations, should include (and I quote from our statement in the Plenary of the Law of the Sea Conference on April 6, 1976) “an effective, comprehensive, expeditious and viable dispute settlement system entailing a binding decision regarding all disputes arising out of its substantive provisions of the Convention… This position is dictated both by reason of our attachment to the general principle of equal justice under the law and by reason of our national self-interest as a small and relatively weak state which needs the protection of the law, impartially and objectively administered, in order to safeguard its legitimate rights.”

As the delegation of Hungary put it, we also “attach a special importance to the establishment of an effective dispute settlement mechanism, which is the conditio sine qua non of a well-functioning legal regime of state responsibility.” Moreover, we agree that the usefulness of the elaboration of comprehensive rules concerning such mechanism does not depend on the eventual decision on the final format of the text.

On countermeasures, our position is that, if they are to be retained at all, their scope should be restricted and narrowly defined since they lend themselves to abuse at the expense of the weaker states; they should be aimed at restitution and reparation rather than punishment; they should be applied objectively and not abusively. They should be subject to binding dispute settlement procedures (preferably in a separate article, immediately following the opening article 50, as suggested by the Nordic States). It should also be stressed that armed counter-measures are prohibited under article 2 para.4 of the Charter, which has become a customary rule of international law and, in this connection, let me recall the well-known dictum of the International Court of Justice in the Corfu Channel Case viz. “the Court can only regard an 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, whatever be the present defects of international organization, find a place in international law.” Moreover, other rules of jus cogens involving human rights basic rules, are not subject to derogation also in the case of countermeasures.

Indeed, in the context of State Responsibility, as in other areas of international law, the concept of jus cogens or peremptory norms of international law needs to be clarified, not eroded or ignored. 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 jus cogens is that it cannot be derogated from by agreement between the parties inter se, because this would be incompatible with international public policy and international public order. Thus, in connection with Article 20 of the draft (Chapter V, circumstances precluding wrongfulness) we fully share the Israeli delegation’s expression of regret that the exception regarding the ineffectiveness of consent in cases of peremptory obligations (as was in the 1996 draft article 29) was not retained.

Chapter III, concerning serious breaches of essential obligations to the international community, represents a compromise in order to overcome the long standing Article 19 controversy on the question of international crimes, as distinct from delicts. In our view this represents an acceptable compromise, particularly in light of the subsequent development in the area of individual criminal responsibility as in the 1998 Rome Statute of an International Criminal Court.

Similarly, we 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 reparations.

We also agree that a wrong-doing State must, whenever restitution is not practically possible, provide compensation to the specifically injured state, to include, in addition to the principal amount of pecuniary damage, interest and loss of profit. We have particularly noted the new Article 39 on interest which should be included in the draft, whether in its present or different position.

In conclusion, Mr. Chairman, we express the confident hope that the Commission, taking due account of the views of States, as expressed in the Sixth Committee as well as in writing, will proceed to the second and final reading of the draft articles on State Responsibility at its next session and will present a final draft of this major codification project which has already taken much longer than originally estimated, by next year for final decision by States.