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STATEMENT BY AMBASSADOR A. J. JACOVIDES
TO THE SIXTH COMMITTEE
ON
AGENDA ITEM 156: "REPORT OF THE INTERNATIONAL LAW COMMISSION"
October 30, 2002
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
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
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
Thank you, Mr. Chairman.
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