November 25, 2017

Statement by H.E. Mr. A. J. Jacovides Ambassador, Special Adviser Representative of the Republic of Cyprus to the Sixth (Legal) Committee of the General Assembly on the “Report of the International Law Commission on the work of its fifty-fifth session”

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. Henrique Candioti, the Chairman of the Drafting Committee, Mr. James Kateka, 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/58/10), which was made available in good time.

While appreciating the motivations behind the initiative to revitalize the debate on this item in the Sixth Committee, for practical reasons it is our intention, with your permission, Mr. Chairman, to follow the traditional format.

In accordance with our position stated in the past, it is the view of our delegation that the purpose of the present debate is to provide the opportunity to representatives of States to make an evaluation of the ILC’s Report, to offer general but brief and focused 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 the function of this debate, nor is it practically possible, to go into matters of detail or drafting, except possibly on 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 on this occasion the considered view of my delegation that the positions of Governments stated in this debate 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 their ability to produce written comments on a wide 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 to make its contribution and, for practical reasons as I said earlier, will do so on all topics of the ILC’s Report while reserving the right to revert on any particular point as the debate develops and while fully intending to participate actively in the informal discussions scheduled on certain of the substantive topics.

We are grateful to the Commission’s Chairman, Ambassador Candioti, for his introductory statements which have 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-fifth session, is also very helpful for the same reason. We note that the Commission dealt, in a systematic manner, with all topics on its agenda. It advanced its work on reservations to treaties by adopting further guidelines on the formulation and communication of reservations and interpretative declarations; it considered several draft articles on diplomatic protection, reviewed progress on the topic of unilateral acts of States and agreed on a conceptual outline for the topic of international liability in case of loss by transboundary harm arising out of hazardous activities. It also commenced its work on “Responsibility of International Organizations”; on “Shared Natural Resources”; on “Fragmentation of international law: difficulties arising from the diversification and expansion of international law”. Evidently, the fifty-fifth session of the Commission was one of solid and systematic work forward, in accordance with its mandate by the General Assembly and the Commission as well as the Secretariat, deserve to be commended for it.

We have also noted and will attempt to comment on the specific issues of particular interest to the Commission, as listed in Chapter III of the Report.

On the topic of “Responsibility of International Organizations”, Chapter IV of the Report, my delegation is aligned with the EU position stated on this topic by the delegation of Italy on behalf of the European Union and so I shall say no more than to note that, with the first three draft articles, the Special Rapporteur, Mr. Giorgio Gaja and the Commission, are off to a good start. However, we have also noted the observations made during the debate and especially those by the United Kingdom generally and by Israel on rules of responsibility for peacekeeping operations.

On “Diplomatic protection”, Chapter V of the Report, a classical topic of international law on which there exists a wealth of authority in the form of codification attempts [including one by the Harvard Law School in which I made a very modest contribution on “The right of a State to waive, compromise or settle claims of its nationals” back in 1960], State practice, jurisprudence and conventions. We noted in particular the discussion on the increasingly greater role played by the international tribunals provided for in bilateral investment agreements (BITs) and by the International Centre for the Settlement of Investment Disputes (ICSID) of the World Bank. Indeed, there exists a special regime on foreign investment established by special treaties which confer rights on the foreign investor directly which may be decided by an international tribunal and this goes beyond the customary international law rule which envisaged protection only at the discretion of the national State. We also note with interest the references made to the role of estoppel in international law in this context and to the rules regulating the exhaustion of local remedies (the Interhandel case).

The Special Rapporteur, Mr. John Dugard, deserves full support and appreciation for his valiant efforts to complete this topic and to submit his final report in 2004 and, in response to the question in paragraph 29 of the Report, my delegation’s view is that the topic is adequately dealt with in the draft articles approved in principle by the Commission and those envisaged by the Special Rapporteur, without the need to include other issues.

On “International Liability for Injurious Consequences Arising out of Acts not prohibited by International Law”, Chapter VI of the Report, we have noted the comprehensive report of the Special Rapporteur, Mr. C.P. Rao and the debate in the Commission, with members expressing divergent views on the validity of the topic and as to whether it was appropriate for codification and progressive development. While on the one hand it is clear on the basis of the Corfu Channel case (Merits, 1949) that States are responsible for controlling sources of harm on their territory, on the other, it is equally clear that it is very difficult to define the exact contours of the topic. As the Special Rapporteur correctly observes, although strict liability is well recognized in national legal systems, it cannot be stated that it is well accepted or understood as a desirable policy in the context of transboundary harm and therefore should be cautiously approached. Evidently, the topic needs further work and reflection. As to the question in paragraph 30 of the Report, on the final form of the work of this topic, my delegation is flexible whether it should take the form of recommendations, guidelines, draft protocol or a convention, provided that in the latter case it should, as a matter of principle, include inter-State dispute settlement clauses.

On “Unilateral Acts of States” Chapter VII of the Report, we note the debate on the basis of the sixth report of the Special Rapporteur, Mr. Victor Rodgriguez Cedeno, concentrating on recognition, as well as the Report and recommendations of the Working Group set up for this purpose. We share the view that unilateral acts do exist (including promise, waiver, recognition, protest), 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 demonstrated also by a number of cases considered by the International Court of Justice. We agree with the Working Group’s recommendation I, that ”for the purpose of the present study, a unilateral act of State is a statement expressing the will or consent by which that State purports to create obligations or other legal effects under international law”. In response to the questions in paragraphs 31, 32 and 33, we agree that the Commission should continue to consider unilateral acts stricto sensu, as it has been doing until now, and that Governments should respond positively to the request to provide information on general practice relating to unilateral acts. Whether the Commission should go beyond the present definition of the topic should be carefully weighed further, so as not to overextend the scope of the topic which has proven difficult enough within its present narrower definition.

On “Reservations to Treaties” Chapter VIII of the Report, we note the substantial progress made on the basis of the eighth report of the Special Rapporteur, Alain Pellet, relating to withdrawal and modification of reservations and interpretative declarations, as well as to formulation of objections to reservations and interpretative declarations. We support the endorsement of the draft guidelines proposed, which were in line with the Vienna Conventions of 1969 and 1986 and share the satisfaction regarding the exchange of views between the Commission and the Human Rights Monitoring Bodies in this regard. We warmly commend the efforts of the Special Rapporteur 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 Vienna Conventions which provide a solid foundation. In response to the questions in paragraphs 34 and 35 of the Report, my delegation welcomes its “definition of objections to reservations”, Draft guideline 2.6.1, in that it correctly fills a gap to the Vienna Conventions.

On “Shared Natural Resources”, Chapter IX of the Report, we welcome the prudent and methodical approach of the Special Rapporteur, Mr. Chusei Yamada, in his first report. The topic is broad enough to cover confined transboundary groundwaters, oil and gas but a good start is made with confined transboundary groundwaters. Evidently, further study of the technical and legal aspects is necessary since the science of hydrogeology is quite recent and the relationship of the topic with other related topics (such as in the 1997 Convention on the Law of Non-Navigational Uses of International Watercourses and the 1962 General Assembly Resolution 1803 (XVI) on the permanent sovereignty of States over natural resources) need to be taken into account, as indeed the notion of transboundary harm. We have every confidence that the Special Rapporteur will proceed wisely in his intention to formulate certain principles and cooperation regimes, including a mechanism for the settlement of disputes.

The topic “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law”, Chapter X of the Report, is of particular interest to our delegation. It raises some topical and challenging questions and my delegation strongly favours its consideration by the Commission. We consider the increase in fragmentation as a natural consequence of the expansion of international law which, as indeed the proliferation of international tribunals, is a sign of vitality and thus might strengthen international law, if approached with caution, rather than the reverse, as some fear. Aspects of the topic were dealt with in the 2002 Annual Meeting of the American Society of International Law (“Great Expectations: Where does the Proliferation of International Dispute Resolution Tribunals leave International Law?”). We have carefully noted the Report of the Working Group on the topic, under the Chairmanship of Mr. Martti Koskenniemi (paragraphs 415 to 435) and we find ourselves in general agreement with its analysis, methodology and conclusions. Indeed, there is a distinction between institutional and substantive perspectives on the topic and, at least at this early stage, the Commission should not deal with institutional proliferation (creation of or the relationship among, international judicial institutions) or act as a referee in the relationships between institutions. To the illustrative examples given (in paragraph 419) of the substantive aspects of fragmentation others could be cited, for example, in addition to the Belilos v. Switzerland judgement of the European Court of Human Rights (1988), the case of Loizidou v. Turkey (1998) can be cited of lex specialis on the question of territorial reservations in declarations of compulsory jurisdiction. In our view, the Sixth Committee should continue to support the preference expressed last year for a study of the rules and mechanisms dealing with conflicts and the 1969 Vienna Convention on the Law of Treaties does provide an appropriate framework within which the study can be carried out.

We note the distribution of work for the preparation of the outlines among the Working Group’s members and, more particularly, paragraph 427 (d) “Hierarchy in international law: jus cogens, obligations erga omnes, Article 103 of the Charter of the United Nations as conflicts rules” and the assignment of Professor Z. Galicki to develop it. There is much scope for productive work in this field and the Commission can make a major contribution in these three related areas. Indeed, the concept of peremptory norms of international law or jus cogens (rules from which no State may derogate by agreement inter se, as distinct from jus dispositivum, i.e., rules which the parties may freely regulate by such agreement), 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 for the consideration of this very important notion of present day international law (p.p.16-26 and 105-119). My delegation would urge Professor Galicki, Professor Koskenniemi and the Commission as a whole, to exert all possible effort, through the opportunity presented by this new topic, to satisfy a pressing existing need to clarify and amplify this important notion, thus filling the existing lacuna. 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 and referred to elsewhere but was widely used and given much weight by the Commission in the recently adopted articles on State Responsibility and is also encountered in the context of the challenging subject of the “Responsibility to Protect”.

Turning now to Chapter XI on “Other Decisions and Conclusions”, we have carefully noted its contents. We look forward to the outcome of the efforts of the Working Group of the Planning Group on the long-term programme of work, under the leadership of Professor Pellet (the more so, knowing of his progressive views on such topics as jus cogens). We approve of the inclusion of Chapters II and III which have proved to be very helpful to a focused debate and we sympathize with and support the Commission’s position on the issues of documentation and 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 and to which Cyprus has again made its modest contribution. My delegation is also pleased to note the traditional exchanges of information between the ILC and, respectively, the International Court of Justice, the European Committee on Legal Cooperation and the Committee of Legal Advisers on Public International Law of the Council of Europe, the Asian African Legal Consultative Organization, the Interamerican Juridical Committee, as well as with other relevant Bodies such as the legal services of the International Committee of the Red Cross, the International Law Association, the United Nations Human Rights Monitoring Bodies, FAO and the International Association of Hydrogeologists.

Indeed, the exchanges currently taking place in New York between the President and members of the International Court of Justice and the Legal Advisers of 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 of enhancing the role of international law, its codification and progressive development in today’s world.

Thank you, Mr. Chairman.