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Statement by the Representative of Cyprus
to the 6th Committee
Ambassador Andreas J. Jacovides
on Agenda Item 159:
Report of the International Law Commission
(State Responsibility)
Mr.
Chairman,
At
the outset, allow me to extend to you and the other members of the Bureau our
warmest congratulations. Your long experience and skill have been evident in the
conduct of the Sixth Committee’s proceedings.
The
consideration of the International Law Commission’s Report has traditionally
been the highlight of the Sixth Committee’s agenda and I feel privileged to
again participate in this debate.
My
present statement will address primarily the State Responsibility item, which
has rightly been the focal point of the Commission’s attention this year.
Before
I go any further, I wish to extend congratulations to the Commission’s
Chairman, Ambassador Chusei Yamada, for his leadership and to thank him for his
clear and most helpful introduction of the first four chapters of the Report in
his statement earlier this week. I also pay tribute to the Director of the
Codification Division and his colleagues for their excellent work in producing a
report which is up to its usual high standards.
Allow
me first to make a general observation. I had stated ten years ago (in fact, in
the International Law Commission on 6 June 1990) that, unlike the earlier
approach when State responsibility concentrated primarily on the narrow topic of responsibility for injury to aliens, “with the
development of jus cogens, even though as yet undefined 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 United Nations
Charter, the topic of State Responsibility is placed on a much broader
foundation and 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. State Responsibility has thus been transformed as a proper
expression of the application of progressive development. 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 was, and is still valid and sustainable. While it is
understandable that the pendulum may swing backwards toward the middle ground
from extreme and controversial positions in the light of the constant evolution
of international law, care should be taken not to allow it to swing back too far
to the traditional conventional approach at the expense of progressive notions,
imported into the law largely as a result of the impact of newly independent
states. Whether the final outcome of the Commission’s work, hopefully to be
completed by the end of this Commission quinquennium in 2001, passes this test
remains to be seen. As of now, the jury is still out.
Turning
to the current text, in Chapter IV of the Report (A/55/10), I would like to
congratulate the Special Rapporteur, Professor James Crawford, for doing an
outstanding job with his customary energetic style (as we also witnessed in the
context of his work on the draft Statute for an International Criminal Court a
few years earlier). He succeeded in modernizing and streamlining the text so
that, to use the felicitous expression of Michael Wood of the UK
“the former rather baroque architecture has been replaced by more
classical lines.”
While
compromise solutions have been put forward to meet some of the problems in the
earlier text, several issues, including some basic ones, remain outstanding.
Herein lies the usefulness of the present debate whereby the representatives of
States provide the necessary guidance to the Commission, as indeed through the
written comments that the Commission has requested and is awaiting for before
embarking on the final lap of the exercise next year. I believe that we have had
a useful and constructive debate and the observations which follow are intended
to provide our contribution in this regard.
On
the basic question of what form the draft articles would take, we (together with
many other States, notably the Nordic States) would prefer that they 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. The subject is too important and too much
time and effort have gone into it to have it treated in a lesser fashion, such
as a Model Law or a Declaration. However, we are aware that international
lawmaking, as indeed politics, is the art of the possible and therefore we are
not necessarily precluding any other alternatives, provided that our basic
concerns are satisfied.
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 law-making treaties, concluded under the auspices of the United
Nations, should include (and I quote from our statement in the Plenary of the
Law of the Sea Conference on April 6, 1976) “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… 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
the delegation of Hungary put it, 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.”
Moreover, we agree that the usefulness of the elaboration of comprehensive rules
concerning such mechanism does not depend on the eventual decision on the final
format of the text.
On
countermeasures, our position is that, if they are to be retained at all, their
scope should be restricted and narrowly defined since they lend themselves to
abuse at the expense of the weaker states; they should be aimed at restitution
and reparation rather than punishment; they should be applied objectively and
not abusively. They should be subject to binding dispute settlement procedures
(preferably in a separate article, immediately following the opening article 50,
as suggested by the Nordic States). It should also be stressed that armed counter-measures are prohibited under article 2 para.4 of the
Charter, which has become a customary rule of international law and, in this
connection, let me recall the well-known dictum
of the International Court of Justice in the Corfu Channel Case viz.
“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 be the present defects of
international organization, find a place in international law.” Moreover,
other rules of jus cogens involving human rights basic rules, are not
subject to derogation also in the case of countermeasures.
Indeed,
in the context of State Responsibility, as in other areas of international law,
the concept of jus cogens or peremptory norms of international law needs
to be clarified, not eroded or ignored. The issue of consent, which must in any
case be freely given, should be approached with caution since the very essence
of the notion of jus cogens is that it cannot be derogated from by
agreement between the parties inter se, because this would be
incompatible with international public policy and international public order.
Thus, in connection with Article 20 of the draft (Chapter V, circumstances
precluding wrongfulness) we fully share the Israeli delegation’s expression of
regret that the exception regarding the ineffectiveness of consent in cases of
peremptory obligations (as was in the 1996 draft article 29) was not retained.
Chapter
III, concerning serious breaches of essential obligations to the international
community, represents a compromise in order to overcome the long standing
Article 19 controversy 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 of an International Criminal Court.
Similarly,
we see the practical reason for a distinction between States specifically
injured by an internationally wrongful act and other States which have a legal
interest in the performance of the relevant obligations but do not suffer
economically quantifiable injury. While the legal interest exists for both
categories of States, in the practice of States it is the specifically injured
State that has the right to reparations.
We
also agree that a wrong-doing State must, whenever restitution is not
practically possible, provide compensation to the specifically injured state, to
include, in addition to the principal amount of pecuniary damage, interest and
loss of profit. We have particularly noted the new Article 39 on interest which
should be included in the draft, whether in its present or different position.
In
conclusion, Mr. Chairman, we express the confident hope that the Commission,
taking due account of the views of States, as expressed in the Sixth Committee
as well as in writing, will proceed to the second and final reading of the draft
articles on State Responsibility at its next session and will present a final
draft of this major codification project which has already taken much longer
than originally estimated, by next year for final decision by States.
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