June 25, 2017

Statement by Ambassador Iacovides 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 annual agenda of the Sixth Committee and I feel privileged to participate once again in this debate.

May I place on record our warm congratulations and pay tribute to the Commission’s Chairman, Mr. Robert Rosenstock, the Chairman of the Drafting Committee, Mr. Chusei Yamada, and its other officers and members and to commend Mr. Vaclav Mikulka and his colleagues in the Secretariat, who service it with professionalism and dedication, for an excellent report (A/57/10), which was made available in good time.  

Mr. Chairman,

It has long been our view that the nature and practical possibilities afforded by the present debate is to provide the opportunity for representatives of States to make an evaluation of the ILC’s Report, to offer general comments on the topics dealt with, to provide answers on the issues of legal policy where the Commission needs guidance and also to inject an element of political direction whenever it is appropriate and useful to do so. It is not, in our view, the function of this debate, or is it indeed possible, to go here into matters of detail or of drafting except, perhaps, for very few issues of particular interest to the delegation concerned. The Commission as an expert body, has the time and the expertise to do this.

May I also reiterate our considered view that the positions of Governments stated during this debate should be given no less weight than 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 Main Committee of the General Assembly can serve also this purpose just as authoritatively.

It is with these considerations in mind, Mr. Chairman, that my delegation will proceed with your permission to make its contribution and, for practical reasons, will do so on all topics in the ILC’s Report, while reserving the right to revert on any particular point, as the debate develops.

We are grateful to the Commission’s Chairman, Bob Rosenstock, for his introductory statement which has been very helpful in highlighting and directing attention to the main issues. Chapter II of the Report, summarizing the work of the Commission during its Fifty-fourth Session, is also helpful for the same reason.  As a general observation, we note that, unlike for instance in last year’s Report when the main emphasis was placed on a topic of major significance such as State Responsibility, this year the time and energy of the Commission were shared by several of the existing topics and with fresh starts on new ones, as indeed was to be expected with a new quinquennium and a newly constituted Commission. We also noted and will attempt to comment on the specific issues of particular interest to the Commission listed in Chapter III of the Report.

We note from Chapter IV that substantial progress has been achieved on the topic “Reservations to Treaties” through the adoption of a substantial number of guidelines and the commentaries thereon on the formulation of reservations and interpretative reservations. We warmly commend the efforts of the Special Rapporteur, Professor Alain Pellet, and look forward to the completion of this project, which was started in 1994, during the present quinquennium through the adoption of a Guide to Practice, building upon the relevant Articles of the 1969 Vienna Convention, which provide the indispensable basis and solid foundation. In response to the question posed in para.26 of Chapter III, in connection with para.4 of draft guidelines 2.1.6, it seems to us appropriate that the communication of a reservation to a treaty can be made by electronic mail or facsimile but that, in such a case, the reservation should be confirmed in writing.

We similarly note from Chapter V of the Report the advances made in the classical topic of “Diplomatic Protection”. While agreeing that this is a subject on which there exists a wealth of authority in the form of codification attempts, conventions, State practice, jurisprudence and doctrine to the point that no other branch of international law is so rich in authority, practice is frequently inconsistent and contradictory.  We therefore sympathize with the valiant efforts of the Special Rapporteur, Professor John Dougard, to provide the options and understand the difficult choices faced by the Commission. The core of the issue of diplomatic protection is the nationality principle, i.e. the link between a State and its nationals abroad. Therefore, it is best that the draft articles be confined to issues relating to the nationality of claims and to the exhaustion of local remedies, so that it might be possible to conclude the consideration of the topic within the Commission’s quinquennium. We thus note with appreciation the text of draft articles 1 to 7, adopted by the Commission and their commentaries and would await with interest the Commission’s deliberations and conclusions on the other draft articles proposed. As for the questions posed in paras. 27 and 28, we would be inclined to accept that the 1982 Law of the Sea Convention adequately covers the ground on the former and that the State of nationality of the shareholders should have the right of diplomatic protection recognized in the Barcelona Traction case on the latter. In these respects, we have noted and generally agree with the position stated by the Norwegian delegation on behalf of the Nordic States on 28 October and especially regarding the reference to the case law of the Iran / United States Tribunal and of the jurisprudence of the UN Compensation Commission.

On the topic of “Unilateral Acts of States”, Chapter VI of the Report, we note the debate on the basis of the fifth report of the Special Rapporteur, Mr. Victor Rodriguez Cedeno and once again we express our firm support for his efforts to make headway on a topic which, although not lending itself readily to the formulation of rules, is nonetheless of importance in international relations. Divergent views have been expressed in the Commission and it has not helped that only three States replied to the questionnaire addressed to Governments in 2001. There are specific types of unilateral acts such as promise, waiver, recognition and protest that could be concentrated on and there may be benefit to adopting the method of a research project envisaged in para.373 of the Report. We tend to share the Special Rapporteur’s view that unilateral acts do exist, that they are a well-established institution in international law and, subject to certain conditions of validity, they can constitute a source of obligations as indicated also by the jurisprudence of the International Court of Justice, for example, in the Nuclear Tests case, the Temple of Preah Vihear case and the Fisheries Jurisdiction case. While reserving our position on the view expressed in para.422 that only those decisions adopted by the Security Council under Articles 41 and 42 of the Charter be taken into account (Article 25 of the Charter, as interpreted by the Namibia Advisory Opinion, may also be relevant in this respect), we endorse the Commission’s encouragement, to States to provide information on State practice on unilateral acts by replying to the August 2001 questionnaire, thereby facilitating the difficult task of the Special Rapporteur and of the Commission to advance their work on this topic.

Chapter VII of the Report deals with “International Liability for injurious consequences, arising out of acts not prohibited by international law” and more specifically, with international liability in case of loss from transboundary harm arising out of hazardous activities, or the second part of the topic having completed the draft articles on prevention. We note and welcome the appointment of Mr. P.S. Rao as Special Rapporteur. The topic as now defined, covers the area where harm occurs despite compliance by the State of its duties and significant transboundary harm arises out of hazardous activities through the allocation of loss among different actors involved, such as those authorizing, managing or benefiting from the relevant operations and this can be done according to specific regimes or through insurance mechanisms. It is correctly recognized that States should be reasonably free to permit desired activities within their territory or under their jurisdiction or control, despite the possibility that they might give rise to transboundary harm. However, it is equally correctly recognized that they should ensure that some form of relief, such as compensation, be made available if actual harm occurs despite taking appropriate preventive measures. Thus, the innocent victims should not be left to bear the loss. The allocation of loss covering the State and the various relevant actors (operators, insurance companies and loss-sharing schemes) is the object of the exercise and we are in basic agreement with the considerations set out in the Working Group’s report. In this regard, the Commission might usefully be reminded of the work being carried out, under the auspices of the Permanent Court of Arbitration in The Hague , by the Steering Committee on Mass Claims Processes and of the relevant discussion during this year’s Annual Meeting of the American Society of International Law.

Turning to Chapter VIII of the Report, on the new topic of “Responsibility of International Organizations”, we have noted the conclusions of the relevant Working Group and welcome the appointment of Mr. Giorgio Gaja as the Special Rapporteur on the topic. We have one remark, viz. on para.486 on the settlement of disputes. My delegation stated in last year’s debate on State Responsibility that it considered the absence from the Commission’s draft of a provision for dispute settlement was a shortcoming and went on to state our position of principle that all multilateral law treaties concluded under the auspices of the United Nations should include “an effective, comprehensive expeditious and viable dispute settlement system entailing a binding decision”. We still consider that an effective dispute settlement mechanism is a condition sine qua non of a well functioning legal regime of State responsibility, and this extends to the regime of responsibility of international organizations, on which the Commission is now embarking. As for the questions posed in para.31 of the Report, our preference would be as (a) that the topic should be limited to issues relating to the responsibility for internationally wrongful acts under general international law and (b) that it would be preferable to limit the study to intergovernmental organizations, at least at the initial stage.

Chapter IX of the Report on the new topic “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law” raises some interesting and challenging questions, as set out in the report of the Study Group (paras. 495 to 513). My delegation considers the increase in fragmentation as a natural consequence of the expansion of international law and favours its consideration by the Commission. This expansion, and indeed the proliferation of international tribunals, is a sign of vitality and can have positive effects and might strengthen international law, rather than the opposite. Indeed, the topic is unique. It does not lend itself to codification, but can be more appropriately be treated in a series of studies or seminars. While, as we observe from para.506, there may not be a “well developed and authoritative hierarchy of values in international law” we note and fully approve the inclusion in the Study Group’s recommendations for subjects of study, the “hierarchy in international law: Jus cogens, obligations erga omnes, Article 103 of the Chapter of the United Nations as conflict rules”. Indeed, the concept of peremptory norms or jus cogens, as incorporated in the 1969 Vienna Convention on the Law of Treaties, needs authoritative elaboration and, in this connection, attention is drawn to the International Law Commission’s document A/CN.4/454 dated 9 November 1993, which contains much relevant material of direct interest to the consideration of this very important notion of present day international law (pp. 16-26 and 105-119). My delegation would urge the Commission and the Chairman of the Study Group (presumably another Member in view of the deserved elevation of the current Chairman to the International Court of Justice) to give positive consideration to the opportunity presented by this new topic to satisfy the existing need in this regard. The situation, as it now stands, is not conducive to the objectivity, transparency and predictability which should characterize a legal principle, especially one which has been solemnly accepted not only in the landmark 1969 Vienna Convention, but was give much weight more recently by the Commission in the draft articles on State Responsibility. Ther is evidently a lacuna which needs to be filled.

Turning now to Chapter X of the Report, on “Other Decisions and Conclusions of the Commission”, we have carefully noted its contents. We see under “New Topics” that, in addition to “Responsibility of International Organizations” “Fragmentation” and “International Liability”, an item of “Shared Natural Resources” was included, and Mr. Chusei Yamada was appointed as Special Rapporteur. We look forward to the views of the Working Group established in this regard, as well as to the distinguished contribution of Mr. Yamada, also in this new capacity. We also note the work programme of the Commission for the 2003-2006 period, its long-term programme of work, its procedures and methods of work and we fully sympathize and support its position on the issue of honoraria. We have noted and welcome the activities in connection with the holding of the annual training International Law Seminar, which has proven its value over the years. My delegation is also 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 currently taking place 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.

Thank you, Mr. Chairman.