December 16, 2017

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

Mr. Chairman,

The consideration of the International Law Commission Report has traditionally been the highlight of the annual agenda of the Sixth Committee and again I feel privileged to participate in the debate.

Before I go any further, allow me to extend warm congratulations to the Commission’s Chairman, Peter Kabatsi, the Chairman of the Drafting Committee, Peter Tomka and its other officers and members, and to commend the members of the Secretariat, who service it with commendable professionalism and dedication, for an excellent report (A/56/10). Even though the report is unusually lengthy at 536 pages, it is well laid out and exceptionally substantive. Mr. Mikulka and his colleagues deserve credit for the fact that it was made available relatively early for its contents to be studied in good time.

Mr. Chairman,

It has been our view that the nature and practical possibilities afforded by the present debate is to provide the opportunity for representatives of States to offer an evaluation of the ILC’s Report, general comments on the topics dealt with and to provide answers on the issues of legal policy, where the Commission needs the guidance of the General Assembly and also to inject an element of political direction whenever it is appropriate and useful to do so, without going into matters of detail or drafting expect for very few points of particular interest to the delegation concerned. Incidentally, may I also reiterate the view 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.

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 on all topics in the ILC’s Report, but with appropriate emphasis on the major topic of State Responsibility.

We are grateful to the Commission’s Chairman, Peter Kabatsi, for his introductory statement, which has been very helpful in focusing on the main issues.

Chapter II of the Report, summarizing the work of the Commission during its fifty-third session, is also helpful for the same reason.

We note, with great satisfaction, that the ILC completed the second reading of “State Responsibility” and recommends that the General Assembly take note of the draft articles on responsibility of States for internationally wrongful acts in a resolution to which the draft articles would be annexed and that, at a later stage, to consider the possibility of convening an international conference of plenipotentiaries to examine these draft articles with a view to adopting a convention. I shall revert to this point when examining the content of Chapter IV.

On the topic “International liability for injurious consequences arising out of acts not prohibited by international law (prevention of transboundary damage for hazardous activities)”, we note, also with satisfaction, that the Commission completed the second reading of the draft articles on Prevention of Transboundary harm for hazardous activities and recommends the elaboration of a convention thereon by the Assembly. My delegation highly commends the Special Rapporteur, Mr. P.S. Rao and trusts that this recommendation will be duly proceeded with.

On the topic “Reservations to Treaties”, we have noted the advance made on this topic through the adoption of draft guidelines on the formulation of reservations and interpretative declarations, commend the work of the Special Rapporteur, Professor Alain Pellet, and look forward to the early completion also of this project through the adoption of the Guide to Practice, building upon the relevant Articles of the 1969 Vienna Convention which provide a solid foundation. In response tot he question in para.20, under Chapter III, we see merit in the Commission’s not including in its draft Guide to Practice draft guidelines specifically relating to conditional interpretative declarations. Nor should anything be done to unduly encourage the later formulation of reservations (para.23 of the Report).

On the topic “Diplomatic Protection”, we welcome the progress made on the questions of continuous nationality, transferability of claims and the exhaustion of local remedies and we highly commend the Special Rapporteur, Professor John Dugard, for his progressive approach on this very classical chapter of international law. More particularly, we would be inclined to answer in the affirmative the question in para.28(b) on protecting shareholders who are nationals of the State exercising diplomatic protection.

On the topic of “Unilateral Acts of States”, we fully sympathize with the Special Rapporteur, Ambassador Victor Rodriguez Cedeno, in his valiant efforts to guide the Commission through this uncharted field and, with reference to para.29, we endorse the view that Governments should be encouraged to assist the Special Rapporteur by replying to the relevant questionnaire on State practice on the topic.

My delegation is pleased to note the traditional exchanges of information between the ILC and, respectively, the International Court of Justice, the Asian-African Legal Consultative Organization, the Inter-American Juridical Committee and the Committee of Legal Advisers on Public International Law of the Council of Europe. Indeed, the exchanges taking place currently in New York between the President and Members of the International Court of Justice and the legal advisers from Foreign Ministries with the Sixth Committee serve the same purpose in a different setting. Such interaction is certainly worthy of encouragement as a means of promoting our common objective in terms of enhancing the role of international law, its codification and progressive development, in today’s world. It is no coincidence that major advances in the fight against international terrorism such as in Security Council resolution 1373, of 28 September 2001, have been achieved with unanimity in the Security Council and we very much hope and urge that equivalent results can soon be achieved by the General Assembly. Likewise, we have noted from the report and welcome the activities in connection with the holding of the annual training International Law Seminar, which has proven its worth over the years.

I now turn, Mr. Chairman, with your permission, more specifically to the main focus of attention this year, State Responsibility in Chapter IV of the Report (pp. 29 to 365).

 

Mr. Chairman,

It is generally acknowledged that State responsibility is a very important topic in international law. It is also common ground that its consideration by the International Law Commission, commencing at its seventh session in 1955, has taken far too long through successive Special Rapporteurs. I had occasion to state in the past our view that, while the earlier approach was that State responsibility concentrated primarily on the narrow topic of responsibility for injury to aliens, with the development of jus cogens 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 UN Charter, the topic of State responsibility was placed on a much broader foundation. It is now recognized, also by the International Court of Justice (beginning with the Barcelona Traction Case in 1970) that there exist obligations erga omnes and that the interests of the whole international community and of international public order need to be taken into account.  State responsibility has thus been transformed by way of progressive development and 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 is still valid and sustainable.

This is not the time for going into the history of the various phases of the item in the ILC. It is understandable that the pendulum has swung towards the middle ground from extreme and controversial positions in the light of the constant evolution of international law.

I would like to congratulate very warmly the Special Rapporteur, James Crawford, for doing an outstanding job with his customary energetic style (as we also witnessed in the context of his work in other situations and in particular on the draft Statute for an International Criminal Court a few years earlier). It should be acknowledged that he has succeeded in modernizing and streamlining the text, with the assistance of the Drafting Committee and its able Chairman, Peter Tomka.

There has been selective surgery of certain elements (Article 19 of Part I on state crimes comes readily to mind) as the price of arriving at long last to a conclusion of the project by way of compromise. The net result, subject to certain understandings, is one that the Commission can take credit for and my delegation can accept and support, since we recognize that the better is the enemy of the good and that international law making is the art of the possible.

The absence from the Commission’s draft of provision for dispute settlement is indeed a shortcoming. My delegation has always, persistently and consistently, advocated the position that, as a matter of principle, all multilateral law treaties, concluded under the auspices of the UN, should include (and I quote from our statement in the Plenary of the Law of the Sea Conference on 6 April 1976) “an effective, comprehensive, expeditious and viable dispute settlement system entailing a binding decision regarding all disputes arising out of the 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 was correctly put by the delegation of Hungary in last year’s debate on the ILC report, 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”.

The understanding, expressed in para.60 of the Report, that would “leave it to the General Assembly to consider whether and what form of provisions for dispute settlement could be included, in the event that the Assembly should decide to elaborate a conversion”, in keeping the door open is better than none but not a fully satisfactory solution in the view of my delegation.

Related to this is the question of the form of the draft articles. In last year’s debate we (with many other States, notably to Nordic States) expressed the preference that the draft articles 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. We stressed that the matter is too important and too much time and effort have gone into it, to be treated in a lesser fashion, such as a Model Law or a Declaration. However, as a realistic matter, we did not preclude other alternatives provided that our basic concerns were met, and we note that several suggestions have been made, including the inscription of a specific item in a subsequent General Assembly session agenda.

Under the circumstances, we can live with the understanding (para.67) that the Assembly should in a resolution take note of the draft articles and annex the text of the articles to the resolution (as stated with GA res. 55/153 on the Nationality draft). Indeed, we could go beyond this and welcome / note with appreciation the draft articles. However, we strongly support that the resolution should also propose that (as in para.67), given the importance of the topic, in the second and later stage the Assembly should consider the adoption of a Convention on this topic, including the adoption of compulsory third party dispute settlement provisions. This might prove to be an unrealistic aspiration but at least the door is kept open should future circumstances permit it, as we wish to hope.

Thus my delegation, with some reluctance, can go along with the ILC’s recommendations as spelled out in paras.72 and 73 of the Report. Similarly, we can agree with the proposed change in the title of the topic to “Responsibility of States for internationally wrongful acts”, for the reasons set out in para.68 of its Report.

 

Mr. Chairman,

My delegation would now address briefly the two other main issues over which evidently the Commission agonized before arriving at its conclusions, i.e., the question of serious breaches of obligations to the international community as a whole and the question of countermeasures.

We have carefully noted the various viewpoints expressed regarding the former (paras.45 to 48) and we agree that the Chapter (Part Two, Chapter III) should be retained and that the clear emphasis should be on peremptory norms, as reaffirmed in the 1969 Vienna Convention on the Law of Treaties. In this connection, and generally on jus cogens, attention is drawn to the International Law Commission’s doc. A/CN.4/454 dated 9 November 1993, which contains much relevant material of direct interest to the consideration of this very important notion. We also find the distinction between “serious breaches” of peremptory norms and trivial or minor breaches of such norms difficult to delineate and apply. The presumption should be that breaches of peremptory norms are always serious.

As for the latter, viz. countermeasures (Part Two , Chapter II), our position is that they should be restricted and narrowly defined as they lend themselves to abuse at the expense of weaker states; that they should be aimed at reparation, rather than punishment; that they should be applied objectively; and that they should be proportional and subject to extensive third party dispute settlement provisions. Armed countermeasures, contrary to Article 2 para.4 of the UN Charter, are contrary to customary law as well as the jus cogens. Allow me to remind the well-known dictum of the ICJ in the Corfu Channel Case that ”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 the present defects of international organization, find a place in international law”; and that other rules of jus cogens, including human rights basic rules, are not subject to derogation also in the case of countermeasures. Our position on the draft articles proposed by the ILC on countermeasures is in the light of these considerations.

Mr. Chairman, we have carefully noted and fully agree with the general provisions, set out in Part IV, applicable to the draft articles as a whole. Article 55, based on the principle lex specialis derogat legi generali, makes clear that the articles have a residual character and, in case of inconsistency, the special rule prevails. It is rightly stated in the commentary that “States cannot, even as between themselves, provide for legal consequences of a breach of their mutual obligations, which would authorize acts contrary to peremptory norms of general international law”. Indeed, the very essence 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.

Article 56 makes it clear that the articles are not exhaustive and they do not affect other applicable rules of international law on matters not dealt with. Examples cited in the commentary include the invalidity of a treaty procured by an unlawful use of force, fundamental change of circumstances or termination because of material breach, all stemming from the law of Treaties and not from the rules of State responsibility.

Article 57 excludes from the Scope of the Articles questions concerning the responsibility of international organizations and States for the acts of international organizations.

Article 58 provides yet another saving clause regarding the question of the individual responsibility under international law of any person acting on behalf of a State. But, as the commentary correctly points out, “the State is not exempted from its own responsibility for internationally wrongful conduct by the prosecution and punishment of the State officials who carried it out”, as reflected also in Article 25(4) of the Rome Statute for an International Criminal Court.

Finally, in this context, Article 59 reserves the effects of the UN Charter. The commentary makes clear that “the Articles are in all respects to be interpreted in conformity with the Charter of the UN” and that the principle under Article 103 of the Charter, that in case of conflict between the obligations under the Charter and obligations under any other international agreement, the obligations under the Charter prevail.

Mr. Chairman, I now with your permission, will make some observations on specific issues of particular interest to us arising out of the text of the draft articles and their commentaries.

We have carefully noted, under Chapter V, Circumstances Precluding Wrongfulness, Article 20, on Consent. We stated in last year’s debate that “the issue of consent, which must be freely given, should be approached with caution since the very essence of the notion of jus cogens is that cannot be derogated from by agreement between the parties, inter se, because this would be incompatible with international public policy and international public order.” In the same context, i.e. draft Article 20 on Consent, we stated that we fully shared the Israeli delegation’s expression of regret that the exception regarding the ineffectiveness of consent in case of peremptory obligation (as was in the 1996 draft article 29) was not retained. We note from this year’s commentary that as an addition to the other modalities that need to be observed for consent to be considered valid (para.6), reference is made to “cases in which consent may not be given at all” with cross reference to draft Article 26 (compliance with peremptory norms) which applies to Part V as a whole.

Paras.5 and 6 of the commentary to this article 26, as well as para.9 of the commentary to draft Article 45 (loss of the right to invoke responsibility) are pertinent in this regard. In enumerating in para.5 of the commentary to draft Article 26, the peremptory norms recognized as such under the criteria of Article 53 of the 1969 Vienna Convention we note that, while there is reference to “aggression, genocide, slavery, racial discrimination, crimes against humanity and torture and the right to self-determination” there is no express reference to the use of armed force in violation of Article 2 para.4 of the Charter and which may or may not in all cases be covered by the term “aggression”, a point which needs to be borne in mind considering the uncertainty and subjectivity of “aggression” (despite the 1974 GA resolution 3314) and the role of the Security Council in this regard. We also note, in para.6 of the commentary to draft Article 26 that “one State cannot dispense another from the obligation to comply with a peremptory norm….whether by treaty or otherwise”. While a valid consent (as in para.4 of the commentary on draft Article 20) may be relevant for a lawful purpose in our view it may not negate an applicable peremptory norm, or make legal what would be illegal under an applicable peremptory norm, for the reason we stated earlier.

We also noted draft Article 21 on self-defence. Indeed, Article 51 of the Charter preserves a State its inherent right of self defence ”if an armed attack occurs” until the Security Council has taken appropriate measures and, to that extent and within these limits, a State acting in self-defense is not in breach of Article 2 para.4 of the Charter.

Mr. Chairman, my delegation attaches particular importance to Chapter III of Part Two draft Articles 40 and 41 on Serious Breaches of obligations under peremptory norms of general international law. Under Article 2 para.6 of the Charter, “the Organization shall ensure that that States which are not Members of the United Nations act in accordance with these principles so far as may be necessary for the maintenance of international peace and security”. Under Article 103 of the Charter “in the event of a conflict between the obligations of the members of the UN under the present Charter and their obligations under any other international agreement their obligations under the present Charter shall prevail.”

Under the dictum in the Barcelona Traction case (1970) and, more recently, in the East Timor and Genocide (1996) cases, the International Court of Justice has made it clear that, for the purposes of State responsibility, certain obligations are owed to the international community as a whole and by reason of the importance of the rights involved, all States have an interest in their protection.

Under the 1969 Vienna Convention on the Law of Treaties, Articles 53 and 64, the concept of peremptory norms of international law was accepted through the recognition of the existence of substantive norms of a fundamental character such that no derogation from them is permitted even by treaty.

We consider the proposed Chapter III (Serious Breaches of obligations under peremptory norms of general international law) as a compromise in order to overcome the long standing Article 19 controversy (dating to 1976) 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 for an International Criminal Court.

We are pleased to see recognized in the commentary and footnotes of this Chapter the clear acceptance that “the concept of peremptory norms of general international law is recognized in international practice, in the jurisprudence of national and international courts and tribunals and in legal doctrine.” In the Vienna Conference on the Law of Treaties, Cyprus together with other Governments played an active role in promoting the acceptance of this notion as reflected in the official records of the Conference, A/Conf.39/11, p.p.305-306.   In this context also we draw attention to the fact that not only “aggression” but also the “illegal use of force” and the “unlawful use of force contrary to the principles of the Charter” are contrary to jus cogens (as per footnotes 675 and 679).

My delegation notes that, under draft Article 41, States shall cooperate to bring to an end through lawful means any serious breach within the meaning of Article 40; and that “no State shall recognize as lawful a situation created by a serious breach within the meaning of Article 40, nor render aid or assistance in maintaining that situation”. We applaud this position of “non recognition”, “non-assistance” and “cooperation to bring the breach to an end”.

We noted carefully the commentary and the footnotes accompanying this draft Article and fully subscribe to it. In addition to footnote 697 citing the Loizidou v. Turkey, Merits (1996) case and the Cyprus v. Turkey Judgement (2001) before the European Court of Human Rights, we would, in the context of para.4 of the commentary regarding the reaction of the Security Council to the Iraqi invasion of Kuwait in 1990, (S.C. Resolution 662, 1990) draw attention to the also clear position of the Security Council in S.C. resolutions 541(1983) and 550 (1984). Indeed, as in the case of Kuwait, no State recognized the legality of this purported “legally invalid” action in Cyprus on 15 November 1983 and subsequently but, unlike the purported annexation of Kuwait which was subsequently reversed, there has not been any compliance in the case of Cyprus.

Mr. Chairman, on Part III we have noted and can generally agree with the contents and the approach on the invocation of the Responsibility of a State by the specifically injured State and, in appropriate circumstances, where an obligation is owed to the international community as a whole.

We also noted Chapter II on countermeasures. We already expressed earlier our general position on countermeasures and the particular need for dispute settlement procedures in this regard. We note the approach taken in the draft articles 49-54. We particularly note and welcome the provisions of Article 50(1) and its commentary. Indeed, countermeasures should not affect (a) the obligation to refrain from the threat or use of force as embodied in the Charter of the UN (b) obligations for the protection of fundamental human rights (c) obligations of humanitarian character prohibiting reprisals (d) other obligations under peremptory norms of general international law. The reference to “other” obligations under peremptory norms is particularly apt in this context so as to make clear that what is prohibited specifically in 1(a) (b) and (c) are or can be counted as also peremptory norms. Moreover, the clear statement in 1(a) about “the obligation to refrain from the threat or use of force as embodied in the Charter of the UN” is preferable to the references to “aggression” in other parts of the draft commentaries.

This, Mr. Chairman, concludes my delegation’s observations on State responsibility at this stage. We may revert to cover other aspects in due course. I wish to reiterate our deep appreciation to the Special Rapporteur, the Chairman of the Drafting Committee and all those in the Commission and the Secretariat, who contributed to the preparation and successful finalization of this major project.

Thank you, Mr. Chairman.