October 17, 2021

Statement by Ms. Elena Thoma Representative to the 6th Committee on Agenda item 139: “Responsibility of States for internationally wrongful acts”

Mr. Chairman,

My delegation would like to express its appreciation to the International Law Commission for its impressive work on the major codification project regarding the draft articles on responsibility of states for internationally wrongful acts. The treatment of the subject has had a long and difficult history in the International Law Commission, which was overcome by the continuing codification and progressive development of the draft articles under the successive leadership of Special Rapporteurs Ago, Riphagen and Arangio-Ruiz. We are also pleased to commend the significant contribution of Special Rapporteur, Mr. James Crawford, in effectively modernizing and streamlining the text of the draft articles that we have before us.

The topic of state responsibility is now placed on a much broader foundation and its basic norms and principles are often used in practice by the International Court of Justice, as well as the European Court of Human Rights, in their judgments and advisory opinions.  In this regard, 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.

Mr. Chairman,

On the whole we are in agreement with the Special Rapporteur’s approach both in substance and in drafting.  We consider that our main concerns, regarding Part One, Chapter V (circumstances precluding wrongfulness) have been dealt with in the current text in a satisfactory manner.

The issue of consent, which must in any case be freely given, should be approached with great caution.  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 and international public order.  If Article 2(4) of the Charter incorporates a peremptory norm prohibiting the use of force, any purported derogation from it by agreement is invalid,  even if the agreement obtained is not through an imposed or unequal treaty.  It could be argued that there may be other ways, such as through a Chapter VII binding Security Council Resolution, to cover the requirements of particular situations in a pragmatic fashion, with the consent of the state concerned; but, in our view, the principle that peremptory norms may not be modified by agreement of the parties inter se, must remain intact.  In this regard we are pleased to note that Article 26 (compliance with peremptory norms) provides that “nothing in this chapter, including consent, precludes wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law”.

On the issue of countermeasures, we firmly believe that they should strictly comply with the requirements laid down in the UN Charter. Their scope should be restricted and narrowly defined and they should not lend themselves to abuse at the expense of weaker States. Countermeasures should also be subject to binding dispute settlement procedures. In addition, it should be stressed that armed countermeasures are prohibited, and other rules of jus cogens involving human rights basic rules are not subject to derogation also in the case of countermeasures.

On the basic question of what form the draft articles would take, we would prefer that they be adopted as a legally binding Convention.  In our view, the subject is too important and too much time and effort have gone into it, to let it be treated in a lesser fashion, such as a Model Law or a Declaration.  The elaboration of a Convention will enable States to have full input into the eventual text, while the draft articles will be codified into an internationally acclaimed legal instrument and will gain certainty, durability and authority.

Moreover, 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 treaties, concluded under the auspices of the United Nations, should include 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.  In this regard, we attach special importance to the establishment of an effective dispute settlement mechanism, which is a conditio sine qua non of a well-functioning legal regime of State responsibility.

Mr. Chairman,

In our view, the General Assembly should proceed as a matter of urgency with the adoption of the draft articles in the form of a convention. In this regard, it is important that a working group is established within the Sixth Committee, in order to formulate the preamble and final clauses-including provisions on dispute settlement-of such a convention.

Thank you Mr. Chairman.