Sixth Committee Speakers Unable to Agree About Form of Draft Articles on State Responsibility, as Debates on Texts, Universal Jurisdiction Principle Conclude
‘Compromise Is the Best and Cheapest Lawyer’, General Assembly President Stresses, Urging Delegates to Provide Answers during Continuous Political Turmoil
Delegates alternately urged action and caution as they took up the International Law Commission’s draft articles on State responsibility for internationally wrongful acts in the Sixth Committee (Legal) today, highlighting the ongoing stalemate in the Committee’s consideration of a product that has shaped international jurisprudence over the last 20 years.
The Committee had before it the Secretary-General’s reports on the decisions of international courts, tribunals and other bodies concerning such State responsibility (document A/77/74) and on comments and information received from Governments on this topic (document A/77/198).
The observer for the State of Palestine, noting that States are responsible for upholding international law, said that the draft articles have established general rules for the breach of such law and the consequences that flow from such a breach. Pointing out that the articles are widely invoked by international jurisdictions, she spotlighted their resulting customary nature and universally binding force.
El Salvador’s representative also pointed out that a significant portion of the draft articles have guide the jurisprudence of courts, tribunals and international bodies. Due to such recognition, they have become norms of customary international law in some cases. However, she observed that delegations are commenting on the texts’ provisions, when they should be focusing discussion on how to move from the draft articles towards negotiation of a possible draft convention or other appropriate instrument.
On that point, the representative of Israel said that opening negotiations on a convention at this time would inevitably involve unravelling the draft articles’ current wording, which reflected a delicate balance. The Secretariat’s report on the decisions of international courts, tribunals and other bodies reflected the organic development of the draft articles. This evidences the article’s existing influence, putting the supposed need for a convention into question, he said.
Similarly, the representative of Romania said that renegotiating the draft articles risks negatively affecting their carefully drafted balance and high level of acceptance. The draft articles reflect a challenging compromise between States’ different views and customary international law. Further, the adequacy of their current form has been thoroughly tested and proved in practice, and therefore, the Committee should maintain their current status.
The representative of Portugal, also noting long discussions and an existing body of case law, said that it was time for the Sixth Committee to reach a decision. Failure to do so could negatively impact the articles, and States’ inaction has contributed to jurisprudential fragmentation. This risk of a failed negotiation process could be minimized by defining the scope of a diplomatic conference and conducting preparatory work.
In that regard, Cameroon’s representative suggested that any conference convened to codify the draft articles into a convention should focus precisely on those articles not considered to be part of customary international law. The current debate, meanwhile, should focus on analysing points of disagreement, he said, noting that a new convention would provide the international system with clear rules on the responsibility of States.
At the outset of the meeting, the Sixth Committee concluded its debate on the scope and application of the principle of universal jurisdiction, as many speakers highlighted the potential for misuse of the principle. (For background, see Press Release GA/L/3662.)
The representative of Morocco, speaking for the African Group, recalled that the abuse of this principle in relation to African officials led the Group — composed of 54 States — to request that this item be added to the General Assembly’s agenda in 2009. Since then, no significant steps have been taken in the Committee to address the abuse and misuse of the universality principle. She stressed that the Committee can, and must, address the inclination of non-African States to apply universal jurisdiction without the consent of African States, outside the safeguards of the international system.
Indonesia’s representative echoed that concern, noting that the lack of agreement on the principle’s definition, scope and limits might lead to the improper – even abusive – application of domestic law to foreign nationals. The principles of the Charter of the United Nations — notably, sovereign equality and non-interference in States’ internal affairs — must be honoured throughout judicial procedures, he stressed.
The representative of Lesotho emphasized, however, that the definition of universal jurisdiction should not be of paramount importance to the Committee. Rather, it should focus on the principle’s scope and application, along with the potential abuse and political manipulation of this type of jurisdiction. He also stated that the principle of universal jurisdiction constitutes an integral part of international law, allowing for justice to be realized in places where it would otherwise be inconceivable.
At the onset of the meeting, Csaba Kőrӧsi (Hungary), President of the General Assembly, addressed the Sixth Committee and stressed that its work “must not be merely an academic exercise”. International law must provide answers, assurances, order and justice in the face of nigh-continuous political turmoil, natural disaster and health crises. Calling on those present to work together to conduct business through dialogue, he quoted Robert Louis Stevenson, who said: “Compromise is the best and cheapest lawyer.”
The Sixth Committee also heard introductions of draft resolutions concerning requests for observer status in the General Assembly for the Digital Cooperation Organization and the Amazon Cooperation Treaty Organization.
Speaking today on the scope and application of the principal of universal jurisdiction were representatives of Algeria, Chile, Argentina, Sudan, Syria, Zambia, Morocco, Türkiye, Dominican Republic, Iran, Zimbabwe and Mali. The observer for the International Committee of the Red Cross (ICRC) also spoke.
Also speaking today on the responsibility of States for internationally wrongful acts were representatives of Finland (also for Denmark, Iceland, Norway and Sweden), Canada (also for Australia and New Zealand), Singapore, Iran, Colombia, Italy, United States, Mexico, United Kingdom, China, Slovakia, Czech Republic, Egypt, Chile, Sierra Leone, South Africa, Armenia, Russian Federation, Cuba, Greece, Cyprus, Netherlands, Algeria, Malaysia, Argentina, Poland and the Republic of Korea.
Also speaking today were the representatives of Saudi Arabia (for the Digital Cooperation Organization), Oman, Pakistan, Bolivia (for the Amazon Cooperation Treaty Organization), Peru (also for Bolivia, Colombia and Ecuador) and Brazil spoke during the consideration of observer-status requests.
The representative of Azerbaijan spoke in exercise of the right of reply.
The Sixth Committee will next meet at 10 a.m. on Monday, 17 October, to consider the report of the United Nations Commission on International Trade Law on the work of its fifty-fifth session; the status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict; and the consideration of effective measures to enhance the protection, security and safety of diplomatic and consular missions and representatives.
President of General Assembly
CSABA KŐRӦSI (Hungary), President of the General Assembly, said that law and justice are essential dimensions of the social contract, especially in these turbulent, uncertain times. Lawlessness lies at the heart of fragile and conflict-prone societies and brings the scourge of war on nations. He stressed, therefore, that the Sixth Committee’s work “must not be merely an academic exercise”, as international law must provide answers, assurances, order and justice in the face of nigh-continuous political turmoil, natural disasters and health crises.
He encouraged the Committee to always evaluate its contributions through the lenses of crisis management and transformation, using law as a force for good, sustainable development, justice and positive change. Calling on those present to work together to conduct business through dialogue in a manner that highlights the primacy of the rule of law, he quoted Robert Louis Stevenson who said: “Compromise is the best and cheapest lawyer.” Recalling the debate in the General Assembly over the past two days, he reported that delegations confirmed that the purposes and principles underlying the Charter of the United Nations and international law remain solid and universal. He reaffirmed his pledge to defend the same, stressing: “The world is expecting answers from us. Now it is in your hands.”
Scope and Application of the Principle of Universal Jurisdiction
AAHDE LAHMIRI (Morocco), speaking for the African Group and associating herself with the Non-Aligned Movement, recalled that the abuse of universal jurisdiction in relation to African officials led the Group – composed of 54 States – to, in 2009, request that this item be added to the General Assembly’s agenda. It has since been the subject of challenging discussions in the Sixth Committee, but no significant steps have been taken to address the use and misuse of the universality principle. She expressed concern that this matter remains unresolved and that the scope of the principle remains uncertain, urging the Committee to constructively debate and make progress on this topic.
She also expressed concern over the application of the principle by individual judges in non-African States indicting African senior officials who are entitled to immunity under international law. As such, she expressed her support for the call for the Secretary-General to review previous reports and submit a report to the General Assembly – preferably, by its seventy-ninth session – identifying convergences and gaps in State practice on this topic. The Committee can, and must, address the inclination of non-African States to apply universal jurisdiction without the consent of African States, outside of the safeguards of the international system. She added that the principle is complementary to the national jurisdiction of the country concerned and must be exercised in good faith to avoid its misuse.
MOHAMED FAIZ BOUCHEDOUB (Algeria), associating himself with the Non-Aligned Movement and the African Group, said that the principle of universal jurisdiction should only be applied as an exceptional measure to prevent impunity in cases where national courts are either unable or unwilling to exercise jurisdiction. The principle is therefore complementary to – and not a substitute for – national jurisdiction, and the primary responsibility for investigating and prosecuting international crimes falls on the States where such crimes were committed, or the State of nationality of the perpetrator or victim. As such, he stressed the need to establish clear frameworks for mutual legal assistance to fill legal gaps and ensure that perpetrators do not escape justice. Adding that Member States do not share a common legal understanding of either universal jurisdiction or the crimes to which the principle can be applied, he cautioned against developing an exhaustive list of the latter that is not based on consensus.
JOSE JUAN HERNANDEZ CHAVEZ (Chile), associating himself with the Non-Aligned Movement, said that universal jurisdiction must be considered as a subsidiary and exceptional jurisdiction and solely used when the territorial State or the State that should first exercise jurisdiction fails to do so due to unwillingness or inability. However, if a State exercises jurisdiction on a territorial basis, there should not be any interference by other States as to avoid unnecessary conflicts of jurisdiction. Moreover, such jurisdiction should be exercised only with regard to serious crimes as defined under international law, ideally in a conventional way, without excluding customary law. This approach was necessary to prevent States from individually defining the crimes subject to universal jurisdiction according to their own legislation. He underscored that the topic should be considered in the more general framework with a view of developing an international criminal law in line with the dominant values of prevention and punishment of crimes.
MARTÍN JUAN MAINERO (Argentina)spotlighted that the primary responsibility of crime investigations and prosecutions falls to the State, on which territory the crime was committed, or to the States that have some connection to the crime through the nationality of the perpetrator or the victim. In cases, when States with primary responsibility cannot or do not wish to exercise jurisdiction, universal jurisdiction should be applied. This should, however, be used on exceptional basis following the principle of subsidiarity. Thus, it was important to establish clear rules to govern the exercise of the principle. Argentina exercised the principle on various occasions in a subsidiary form and as an exception to territoriality and personality, once it had been determined that crimes could not be prosecuted by the States, where they had been committed, or by the States of nationality of a perpetrator or a victim. He noted that prior to applying universal jurisdiction, Argentinian authorities ensured that there were no investigations ongoing in the country concerned or in international tribunals.
NKOPANE RASEENG MONYANE (Lesotho), associating himself with the African Group and the Non-Aligned Movement, noted that the principle of universal jurisdiction constitutes an integral part of international law and provides the realization of prospects of justice in places where it would otherwise be inconceivable. The definition of universal jurisdiction should not be of paramount importance to the Sixth Committee. Rather, his concern focused on the principle’s scope and application and the potential abuse and political manipulation of the principle, he said, emphasizing the need to avoid arbitrary or selective application of it. He also underscored that the fundamental purpose of the principle was to ensure that individuals who committed grave offences — war crimes, crimes against humanity and other crimes enshrined in the Rome Statute — were brought to justice.
AMMAR MOHAMMED MAHMOUD (Sudan), associating himself with the Non-Aligned Movement and the African Group, said that the Sixth Committee is the most widely representative platform in which to transparently discuss this principle. This topic requires further study, as the principle of universal jurisdiction does not enjoy consensus and some States have tried to operationalize it in their national legal systems. Stressing that primacy must be given to national jurisdiction, he said that universal jurisdiction is subsidiary in nature, reserved for cases of inability or unwillingness to prosecute. The State of territoriality or nationality has jurisdiction, and the primary responsibility to prosecute perpetrators rests with the same. All States should therefore prohibit serious crimes under national law and exercise their appropriate jurisdiction, he added, emphasizing that this would avoid jurisdictional conflict and the politicization of prosecution.
Mr. KHADDOUR (Syria), associating himself with the Non-Aligned Movement, pointed out that the international community has not adopted the concept of universal jurisdiction as a substitute for – or even a supplement to – domestic jurisdiction. However, certain countries have advanced this exceptional principle as if it is a fundamental type of jurisdiction, sometimes even marketing it as an alternative to domestic jurisdiction. He said that resorting to this “suspicious interpretation of international law” has made the judicial bodies of certain countries a platform with which to target other countries, based on this exceptional principle. This selective, systematic targeting aims to exert political pressure and creates problems in identifying the applicable laws in certain cases. He stressed, therefore, that such countries should focus on traditional jurisdictional rules, and on the crimes perpetrated on their own territories. It is important to reach consensus on defining the principle of universal jurisdiction, he added, to prevent its abuse or selective exercise.
REGINA CHAMA BOMA (Zambia), associating herself with the African Group and the Non-Aligned Movement, noted that to make universal jurisdiction a reality, Member States must “domesticate” applicable treaties and enact relevant laws, while also bridging the gaps between national and international legislation. Zambia was committed to cooperating with other like-minded countries to preserve the principle of universal jurisdiction. To that end, her Government launched a robust criminal justice reform process, having enlisted the cooperation with all relevant institutions, including judiciary, legislature, law enforcement, as well as national law development commission. These institutions are developing a more comprehensive legal framework that adequately incorporates key legal principles. She further reiterated her country’s commitment to promote and protect the principle of universal jurisdiction, ensuring that her Government will continue to undertake all necessary legal reforms to guarantee the promotion of global peace and security.
Ms. LBADAOUI (Morocco), spotlighting the absence of consensus in defining the legal framework for its scope, noted that any action taken as part of universal jurisdiction must take place in a balanced way respecting territorial integrity, non-interference in domestic affairs and without prejudicing the sovereignty of States and their legal systems. The legitimacy of the principle depends on its application pursuant to the principle of complementarity, while perceiving it as a subsidiary issue. Highlighting the priority of national jurisdictions, she reported that the Moroccan legal system was based on the principle of territoriality and personal responsibility. Moreover, at the regional and bilateral levels, Morocco has signed more than 45 bilateral agreements and five regional conventions on mutual judicial aid and extradition. She further noted that in the area of judicial cooperation on extradition, criminal code of the country lays out the primacy of international conventions over national laws.
Ms. AYDIN-GUCCIARDO (Türkiye) said the primary role for preventing impunity for perpetrators of the most serious crimes under international law fell to Member States at the national level and through effective inter-State cooperation. Universal jurisdiction was an exceptional tool and needed to be a last resort. Various Secretary-General reports referred to its secondary or subsidiary nature in relation to other principles like territoriality and active/passive personality principles. Fundamental principles, like sovereign equality and non-interference in internal affairs, needed to be upheld. Many delegations’ broad and legitimate concerns over the absence of common understanding and potential abuse or misuse needed to be kept in mind. Therefore, the scope, limits and applications needed to be considered and monitored and only applied in strict accordance with the Charter of the United Nations. Universal jurisdiction was embodied in Turkish domestic legislation, authorizing courts to exercise jurisdiction over certain crimes, regardless of the perpetrators’ nationality or the crime’s location. On the other hand, the principle of “prosecute or extradite” provided an alternative route, she said.
RADHAFIL RODRIGUEZ TORRES (Dominican Republic), associating himself with the Non-Aligned Movement, emphasized the need to avoid arbitrary or selective application of universal jurisdiction to prevent the principle from being manipulated. The primary responsibility for investigating and prosecuting serious international crimes should lie with the State in whose territory the acts were committed. His country has defined the international legal sphere that is within its jurisdiction and which national tribunals are competent in cases where the exercise of universal jurisdiction is necessary. For such crimes, their gravity or cross-border nature converts them to crimes against humanity. Therefore, investigation and punishment thereof should be allowed for all States victim to such crimes. For its part, the Dominican Republic will ensure that the principle of universal jurisdiction is effectively applied against crimes and atrocities, including terrorism, genocide, crimes against humanity, money-laundering and international drug trafficking, he said.
MOHAMMAD SADEGH TALEBIZADEH SARDARI (Iran), associating himself with the Non-Aligned Movement and the Group of Friends in Defense of the Charter of the United Nations, noted that although the existence of the principle of universal jurisdiction is undisputed, Member States have yet to reach a common understanding on its conceptual and legal framework, its score and application. There was an absence of consensus among national legislations on the categories of crimes under universal jurisdiction; thus, when no international legal basis for the application of the principle is available, the broad interpretation and application of it shall not be taken as a valid precedent of universal jurisdiction. In this vein, he expressed concern about the selective and arbitrary application of the principle; it is viewed as a treaty-based exception in exercising national criminal jurisdiction. Universal jurisdiction cannot be exercised in isolation or exclude other relevant rules and principles of international law, he added.
ANDY ARON (Indonesia), associating himself with the Non-Aligned Movement, said that the principle of universal jurisdiction was a crucial tool for putting an end to impunity for grave breaches of international humanitarian law and other crimes. Its global acceptability was shown by the 1949 Geneva Conventions’ ratification by 196 States. However, the lack of clarity and agreements on the definition, scope and limits might lead to improper, even abusive, application of domestic law to foreign nationals. The Charter’s principles, notably sovereign equality, and non-interference in internal affairs, should be honored throughout judicial procedures. In that regard, he underlined that the principle’s scope and limits should be carefully examined and only applied to the most serious crimes. Moreover, as it stemmed from customary international law, legal analysis on State practice and opinio juris was required. Further, the principle could not be considered separately from other principles, such as State official immunity, State sovereignty and territorial integrity, and must only be performed as a last resort. The principle was also distinct from the obligation to prosecute or extradite, which had greater reach.
PETRONELLAR NYAGURA (Zimbabwe), associating herself with the African Group and the Non-Aligned Movement, pointed out that divergent State views regarding the definition, scope and application of universal jurisdiction creates the potential for the abuse or misapplication of the principle. A clear definition is needed, which will guide the Sixth Committee’s discussions on this topic and lay the foundation for determining the principle’s scope and applicability. Noting that the application of universal jurisdiction aims to combat impunity by holding perpetrators of heinous crimes accountable, she stressed that it must be exercised with the consent of the national jurisdiction concerned. Observing that the principle appears to be selectively applied against African officials, she expressed hope that deliberations will lead to common understanding and obviate fears of such misuse. She added that universal jurisdiction is a measure of last resort, only operating when national courts are unwilling or unable to act and recognizing the immunity granted to senior officials under customary international law.
DJENEBA DABO N'DIAYE (Mali), associating herself with the Non-Aligned Movement and the African Group, highlighted the importance of the principle of universal jurisdiction and noted that it was enshrined in her country’s Constitution and criminal procedural code. Her country was a party to the Geneva Convention and various other international instruments that promote and protect human rights, including a full accession to the African Union documents and treaties. The establishment of Mali’s national legal framework has made counter-terrorism strategies crucial. In this regard, she further commended the cooperation with the International Criminal Court, while emphasizing the importance of defining universal jurisdiction and clarifying its scope and application. Stressing the need to bolster the investigation of increasingly complex crimes, she underscored the importance of international cooperation. She added that Mali is committed to honouring its national and international commitments to bring justice for all.
LOUREEN O. A. SAYEJ, an observer for the State of Palestine, associating herself with the Non-Aligned Movement, said accountability was indispensable to preserve the rule of international law and advance peace. Universal jurisdiction was essential to ensure the rights of victims, combat impunity and promote deterrence and to overcome the international legal order’s jurisdictional gaps. It was a steppingstone towards universal justice. The Sixth Committee had the power, indeed the responsibility, to materialize it and reject its mechanisms’ politicization. The International Criminal Court was the first court with universal calling. Yet despite its magnitude, it lacked jurisdiction over war crimes, crimes against humanity, genocide and the crime of aggression. Therefore, it was important that the United Nations and Member States promoted universal jurisdiction. She expressed her regret regarding the political pressures to thwart efforts in domestic and the International Criminal Court to pursue justice for the crimes against the Palestinian people, she said. Such politicization and double standards undermined courts’ viability as vehicles for international justice and truth as well as international law.
BRADY MICHAEL MABE, an observer for the International Committee of the Red Cross (ICRC) stressed that States have a responsibility to investigate war crimes over which they have jurisdiction, and, if appropriate, prosecute the suspects. For this purpose, universal jurisdiction can be used to fill in the existing legislative gaps and help to move towards accountability perpetrated beyond the States’ borders. The ICRC continues to address the issues of preventing and repressing serious violations of international humanitarian law by supporting States to strengthen their national criminal legislation and establish universal jurisdiction over serious violations. It produces technical documents and practical tools on the application of universal jurisdiction, having recently published an “explainer” paper on universal jurisdiction for war crimes committed in non-international armed conflict. Recognizing that States may apply conditions to universal jurisdiction, he urged that those must be intended to increase the effectiveness and predictability of the principle and not restrict prospects to establishing international justice.
Responsibility of States for Internationally Wrongful Acts
VIRPI LAUKKANEN (Finland), also speaking for Denmark, Iceland, Norway and Sweden, said that the topic of State responsibility for international wrongful acts was among the first subjects placed on the agenda of the International Law Commission. The articles on States’ responsibility belonged to the Commission’s most significant contributions, she noted, adding that since the adoption in 2001, the articles have only gained authority. As case law has demonstrated, there has been broad recognition by a variety of judicial bodies. The articles in general reflected customary international law and it would therefore not be advisable to embark on negotiations.
She went on to say that their operationalization in day-to-day practice underlined the articles’ significance in providing a framework within which the law continued to develop organically. A multilateral convention in general was an ideal vehicle for guiding State action, but she cautioned that reopening the topic might jeopardize the delicate balance built into the articles adopted by the Commission after half a century of deliberations. Thus, there was no need for further action to supplement the work of the Commission on this topic, she said.
KEVIN TIMOTHY MEAD (Canada), also speaking for Australia and New Zealand, said that the draft articles on the responsibility of States for internationally wrongful acts constitute an achievement in the International Law Commission’s considerable body of work. They represent a careful balance of State views on the matter and have been recognized as an authoritative source in this field, reflected by their increasing use in domestic and international courts and tribunals.
However, no sufficient justification currently exists for taking any new initiatives regarding the articles, he pointed out. As they stand, they provide the best framework to guide international bodies and Governments on issues pertaining to State responsibility. Negotiations on a convention would increase disagreement on the articles’ content and upset the balance struck by the Commission. He added that the articles remain useful, however, expressing hope that they will continue to be updated.
YONG-ERN NATHANIEL KHNG (Singapore), pointing to the Secretary General’s reports on information received from Governments and decisions by international courts, tribunals, and other bodies, said that, as this Committee continued to deliberate further actions of the articles, these reports were of assistance. Focusing on the question of future action, he said that since 2001 the international legal order had to contend with increasingly complex problems. States should reflect on the fundamental principles undermining inter-State relations. Those were the very principles the articles on the topic aimed to address. Given their significance, it was critical that the decision on their future be made by consensus. Singapore remained committed to the Committee’s process in deciding how to take the articles forward so they would best serve the needs of the international community, he said.
LIGIA LORENA FLORES SOTO (El Salvador) said that the draft articles on the responsibility of States for internationally wrongful acts adopted by the International Law Commission are a clear example of that subsidiary body’s substantial contribution to the international order. However, 21 years after their adoption, delegations comment on their provisions instead of focusing discussion on the possible convening of an inter-ministerial conference for their consideration. A significant portion of the draft articles have become norms in practice, guiding the jurisprudence of courts, tribunals and international bodies. They have become norms of customary international law in some cases according to the recognition conferred on them by such bodies. She, therefore, called on the Sixth Committee to be more proactive in progressing the procedural track to allow for a technical exchange of views on this topic, focusing on how to move from the draft articles towards negotiation of a possible draft convention or other appropriate instrument.
MOHAMMAD SADEGH TALEBIZADEH SARDARI (Iran) reiterated a long-standing position of his country that codifying the articles into a binding instrument, such as a convention, could provide legal certainty in international relations. Stressing that the time was ripe to convene a diplomatic conference to negotiate and adopt such an instrument, he also underscored the importance of including a dispute settlement mechanism in the future convention. In addition, the articles within the prospective convention concerning reparation for injury would also enhance the rule of law and access to justice at the international level. As well, adopting of such a convention would significantly contribute to preventing and deterring internationally wrongful acts. Recognizing the working group as an appropriate forum for discussing the convention, he reiterated his country’s support for reducing the cycles of consideration of the respective agenda item within the Sixth Committee from triennial to biennial or annual.
Ms. ORDUZ DURAN (Colombia) reiterated her support for holding an international conference and drafting of a convention based upon the existent draft articles. Underscoring support for the codification process based on these articles, she expressed hope that a new convention will help to establish a conventional legal framework, which governs the responsibility of States and grants legal certainty. She noted that due to existed differences of the Member States, discussions on the future measures have stalled, leading to the consequent paralysis regarding certain outcomes of the International Law Commission. Still, she acknowledged that other outcomes have made progress. In this vein, she encouraged that other work products of the International Law Commission be examined in order to consequently identify potential criteria to achieve progress on any particular topics discussed. This, in turn, will contribute to defining a format of future negotiations.
ENRICO MILANO (Italy) emphasized that mere reiteration of pro- or anti-convention positions that do not address the substance of the matter is ineffective and counterproductive. In the long-term, it may contribute to undermining the international consensus that has crystallized over so many provisions of the draft articles on this topic. He therefore suggested that a preparatory working group be established to negotiate those articles not yet qualified as customary international law and on which State practice differs. Such negotiation should focus on the parts of the articles governing the relations between the responsible and injured States and between the responsible State and third States not directly affected by the violation, given the current international scenario that includes the Russian Federation’s war of aggression against Ukraine. He added that any future convention on State responsibility should cover relevant procedures that are not governed by the draft articles but have been subsequently articulated by the International Law Commission in other codification projects, including diplomatic protection.
DAVID BIGGE (United States) said that, since the International Law Commission’s adoption of the articles in 2001 and their recommendations to consider an international conference regarding a convention based on the articles, it became clear that consensus was unlikely, given the range of views in the Committee and working groups. In this regard, he said that the articles were most valuable in their current draft form. Opening the draft articles to debate could lead to redrafting, questioning or undermining well-accepted rules. Because certain articles went beyond existing customary international law, a negotiated convention might not receive widespread acceptance at this juncture. It would be better to allow the topic to develop through State practice and to ascertain whether the draft articles would gain broader acceptance or crystalize into customary international law. Rules developed through State practice were more likely to gain acceptance, as opposed to a convention negotiated under time pressure, he pointed out.
PABLO ADRIÁN ARROCHA OLABUENAGA (Mexico) called on the Sixth Committee to move beyond debating the merits of a convention on the draft articles and, instead, focus on procedural modalities to move towards negotiation without calling into question the value of the draft articles. The Committee must move beyond its current stalemate on this important topic, as current international challenges may impact the responsibility of States due to their failure to comply with – or their violations of – obligations under international law. There is a need for an instrument that provides legal certainty and a clear basis for attributing such responsibility. Noting that this vision for a convention is shared throughout the region, he said that Mexico will continue to promote this approach to bolster international order and the rule of law. He added that this item should be considered on an annual basis, as nothing can justify three-year-long pauses in this discussion.
JONATHAN HOLLIS (United Kingdom) noted that throughout the drafting of the articles – a process that lasted several decades – they became increasingly embedded in State practice as opinio juris. However, States continue to have diverging views on the extend the articles reflect customary international law due to their broad scope of application. To that point, he noted that for similar reasons, his country remains cautious about proposals to move towards negotiating a convention. He expressed concern that such an action can potentially disturb the careful balance of negotiations and increase divergences of views among the States. “We are not convinced that a convention is the correct option for progressing the articles at this time,” he stressed. However, he reiterated that his country will continue to listen to the views of others, remaining open to considering, when the time is right, whether a convention would be appropriate
YANG LIU (China) noted that the draft articles constitute an important research outcome completed by the International Law Commission in 2001. Underscoring the wide attention from the international community to the draft articles in the past two decades and noting the guidance provided to States, he called the articles “generally mature”, as they also provide a comprehensive and balanced regulation with regard to the States’ responsibility. Recognizing existent imperfections of the texts and diverging interpretations of States to certain aspects therein, he expressed support for continuing in-depth discussions and consensus-building on the substance of these documents. He spotlighted that many States called for the research findings of the International Law Commission to be treated fairly and avoid double-standards. To that end, he urged all parties to uphold the tradition of consensus, work in good faith and constructively and refrain from prioritizing certain issues out of individual national interests.
SHAY MOAZ FRIEDMAN (Israel) said that responsibility of States for internationally wrongful acts was of major importance in States’ relations. The draft articles were of significance to public international law. While Israel, as well as other States, may have some reservations regarding the content and status of some of the draft articles, their widespread application in practice is a testimony to their importance, he pointed out. Recalling the General Assembly’s decision at the seventy-fourth session to examine the question of a convention, he noted his country’s longstanding position was that opening negotiations on a convention at this time would inevitably involve unravelling the current wording, which reflected a delicate balance. The Secretariat's report on the decisions of international courts, tribunals and other bodies reflected the organic development of the draft articles. This was evidence of the article’s existing influence and put the supposed need for a convention into question. In that regard, an international conference would not be advisable at this time.
MATÚŠ KOŠUTH (Slovakia) said that the Secretary-General’s compilation of international courts’ decisions indicated the articles’ wide use, not only in judicial courts, tribunals and other bodies but also by States. This represented a form of evidence of opinio juris as specific in the conclusion of the International Law Commission on identification of customary international law. Most articles relied heavily on State practices and jurisprudence. The past 21 years had only strengthened their impact and status. The articles’ high quality and careful balance had contributed to their substantial and extensive recognition, acceptance and application. Reopening the articles would certainly entail an immense risk of jeopardizing and eventually undermining their integrity and level of acceptance. At this stage, he said he did not favour elaborating a convention. However, convening a working group was worth considering. The aggression of the Russian Federation against Ukraine was an exemplary illustration of internationally wrongful acts in practice and trigged the application of the draft articles’ chapter III, he added.
ALIS LUNGU (Romania) said that the articles on Responsibility of States for internationally wrongful acts reflected a challenging compromise between States’ different views and interests and, for the most part, customary international law. Immediately after the draft articles’ adoption, her country supported the Commission’s recommendations, she recalled. The articles continued to be highly influential, evidenced by judgments of national and international courts and tribunals, as well as their frequent use by Governments in formulating legal views. Their form’s adequacy had been thoroughly tested and proved in practice. In that light, a prudent approach should be adopted. The articles should, for the time being, be maintained in their status. Any attempted changes and renegotiations would risk negatively affecting their carefully drafted balance and high level of acceptance.
MAREK ZUKAL (Czech Republic) said that since this topic’s last discussion in 2019, internationally wrongful acts had been committed, adding that, as a matter of fact, as he spoke, there was an act of aggression being committed by the Russian Federation. The application and impact of these articles have increased, demonstrated by the growing number of references by various organs. The Czech Republic preferred to retain their non-binding character, he said. Thus, there was no need to elaborate a convention. States had generally accepted the articles in their current form in both domestical and international courts. According to Czech Republic’s Constitutional Court’s case law, the articles enshrined customary international law. All this illustrated the articles’ widespread recognition. Subjecting the articles to negotiation in a conference represented a risk to their acceptance and integrity and might weaken current consensus and undermine content. Because no significant progress had been made in the Sixth Committee, a working group should be considered. Moreover, this agenda item should be considered less frequent by the Sixth Committee, he said.
SERGIO AMARAL ALVES DE CARVALHO (Portugal) said that the twentieth anniversary of the draft articles’ adoption provided opportunities to reflect on the importance, standing and future of their consideration in this Committee. The Secretary-General’s compilations contributed to understanding how the articles were interpreted and applied. Noting the long discussions and body of practice and case-law, he said it was time to reach a decision. Failure to do so could negatively impact the articles and the Committee could be perceived as lacking ability or willingness to advance a discussion. States’ inaction contributed to the fragmentation of jurisprudence, a possible step back in the law’s codification and consolidation. The risk of a failed negotiation process could be minimized by defining the scope of a diplomatic conference and conducting preparatory work. Codification of international law was a step-by-step process that benefitted from following different procedures, he said, noting the importance of addressing Member States’ potential concerns. Portugal together with Argentina, Lebanon, the Federated States of Micronesia and Mexico would present a document outlining previously used options regarding the Commission’s product, which could be used for discussion.
ZACHARIE SERGE RAOUL NYANID (Cameroon), stressed that the current debate should be focused on an analysis of points of disagreement in order to find appropriate solutions and ensure consensus. A new convention would provide the international system with clear rules on the responsibility of States, clarify the time and duration of the breach of an international obligation by a State and determine the circumstances in which a State may be responsible for the act of another State incompatible with an international obligation of the latter. Recognizing concerns expressed by other States, he suggested that the convention should only be considered on the twofold condition that there are sufficient guarantees that the current structure and balance of the draft articles be maintained and that the substantive provisions in the text are not re-examined. Such a convention must have a real chance of enjoying broad acceptance and ratification. He also suggested that any conference convened on codifying the draft texts into a convention should focus precisely on those articles that are not considered to be part of customary international law and do not enjoy consensus.
AHMED ABDELAZIZ AHMED ELGHARIB (Egypt), noted that numerous violations of international obligations occur on daily basis and constitute international wrongful acts. However, in many cases the States that perpetrate such wrongdoing are not held accountable. The International Law Commission, through the draft articles, addresses the responsibility of States for internationally wrongful acts from a comprehensive perspective, with a consequent application of the international responsibility. Noting that a lot of articles rely on customary law, he took note of divergence among delegates in relation to discussing international convention in a manner that achieves more legal certainty. In this regard, he underscored the importance of allowing proper space for consultations. He further commended the non-paper prepared by Portugal and other States on procedural precedence in relation to the Commission’s products, underscoring its usefulness in guiding discussions on different agenda items
JOSE JUAN HERNANDEZ CHAVEZ (Chile) said that adoption of the draft articles into a convention should be a natural process and ultimately bring certainty and clarity to norms related to wrongful acts and their consequences. He noted that the content of the articles in consideration could also help to close gaps that might appear in special regiments and collaborate on their interpretation. He, thus, asserted that the draft articles should be codified and later ratified by a significant number of countries. Taking note of some countries willing to explore procedures, he voiced readiness to participate constructively in such discussions, underscoring that the future process should also consider the issue of diplomatic protection. He spotlighted that this aspect constituted the way for States to effectively make use of their responsibilities.
KAREN JEAN BAIMARRO (Sierra Leone) expressed regret that the Sixth Committee was discussing this topic three years after its last consideration, despite the item’s importance and the need for practical measures to reach consensus on the future of the draft articles. Welcoming Member States’ responses to the Secretary-General’s request for comments and observations, she spotlighted the frequency, geographic coverage and multilateral nature of the courts, tribunals and other bodies invoking the draft articles during the period under review. The draft articles – while not perfect – are balanced and authoritative. Given the length of time that has passed and their influence on international jurisprudence, she expressed her support for concrete steps towards a future convention based thereon. States must act on the International Law Commission’s products, including these draft articles. She added that States should have more-frequent opportunities to discuss this topic, as the current three-year cycle inhibits dialogue between Member States and hampers reaching timely consensus.
MANTSHO ANNASTACIA MOTSEPE (South Africa), recognizing the significance of the draft articles, spotlighted the related decisions of international courts, tribunals and other bodies including the African Court on Human and Peoples’ Rights and the African Commission on Human and Peoples’ Rights. Such forums not only illustrate Member States’ attitude towards the draft articles’ acceptance but also reflect their practical application in their current form and status. She urged the Sixth Committee to reach consensus in a manner which considers the articles’ aim in regulating the relationship between States on public international law. Any future work to codify the draft articles into a convention must reflect the balance of Member States’ views. Delays in adopting an acceptable action would undermine their status, she emphasized while cautioning that postponements may give rise to the perception of disagreements amongst Member States.
SOFYA MARGARYAN (Armenia) said that the majority of the draft articles already reflect customary international law, especially concerning the use of armed force. She spotlighted article 4 on the attribution of conduct to State organs, article 21 on self-defence and article 16 on aid and assistance in the commission of an internationally wrong act. As breaches of peremptory norms carry consequences, the notion of erga omnes for the assertion of collective interest under article 48(1)(a) appears to have crystallized as customary international law, she observed. The standing to assert a collective legal interest on the basis of the Charter for an act of aggression appears to be sufficiently established as well. Turning to the Secretary-General’s report and its reference to the Makuchyan and Minasyan v. Azerbaijan and Hungary case, she noted the European Court of Human Rights’ findings in the context of article 2, article 11 and article 14.
EVGENY A. SKACHKOV (Russian Federation) said that his country’s position on this topic is well-known and unchanged: the draft articles on the responsibility of States could be helpful in codifying existing norms. However, while this item has been on the Sixth Committee’s agenda for more than 20 years, there exists no single viewpoint as to how to move forward. Suggesting that the Committee gather States’ written opinions on the content and future form of the draft articles, he said that certain provisions therein still require further discussion amongst States. He went on to express regret that certain delegations took the opportunity to make statements that have nothing to do with this agenda item, stressing that such behaviour is inappropriate.
ARIANNA CARRAL CASTELO (Cuba) said she supported all initiatives that would lead to negotiations towards adopting a convention; the draft articles would serve as a major reference point as they cover the norms of customary international law. Although the International Law Commission is not a legislative body, Member States can establish a convention aligned with recognized principles in this area. Much time has passed and enough case law exists such that negotiations can begin on a steady foundation. The reason for delay in adopting a convention was the attitude of certain Governments who continue to avoid their responsibilities and violate international law with impunity. Such States continue to deliver ambiguous, often-contradictory legal statements in this regard, because this important matter has been left to the free and varied will of judges and arbiters interpreting these norms, often in Western countries. She condemned the fact that justice has been “reduced to the arithmetic of what two or three judges decide”, noting that the same are often educated in developed countries and are unfamiliar with the developing world.
ARTEMIS PAPATHANASSIOU (Greece) described the draft articles as one of the Commission’s greatest achievements and the most authoritative statement on issues of State responsibility. They codify customary rules on State responsibility, cover a huge gap in existing international law, strengthen the notion of the international community as a whole and significantly promote the notion of peremptory norms as envisaged in the Vienna Convention on the Law of Treaties as well as the regime of responsibility for grave violations, she said. They also dispense with the notion of damage as a condition for the attribution of responsibility. As well, the texts currently reflect a carefully achieved compromise. While those draft articles should become an international convention, any elaboration must not jeopardize the delicate balance nor change substantive provisions which consist of important compromises on complex and controversial legal questions, she stressed.
HARIS CHRYSOSTOMOU (Cyprus) said that the draft articles reflect customary international law and a widely shared consensus on the international responsibilities of States. Governments; national, regional and international legal bodies and the International Court of Justice have widely cited the draft articles since their adoption. Chapter III notes that international responsibility is entailed by a serious breach of an obligation arising under a peremptory norm of general international law. This includes the legal duty to withhold recognition of acts in violation of norms of international law of peremptory character (jus cogens). Further, he underlined draft article 41 which provides for specific consequences in the case of serious breaches by a State of an obligation arising under a peremptory norm of general international law, including the obligation to cooperate and end the breach by lawful means. The Committee should allow for further discussions, on a biannual basis at the least, which go beyond the framework of the draft articles, he said.
Mr. DOGAN (Netherlands), recognizing that differences exist between various jurisdictions as to interpretation of particular provisions in a particular context, noted that this phenomenon will not disappear when the articles would be codified in a treaty. Therefore, caution should be used in initiating negotiations on a treaty as States’ practices are still being developed. Recalling certain recent developments, he underscored the importance of provisions on non-recognition, international cooperation and non-rendering aid or assistance to serious breaches of preemptory norms. He, thus, reported that his country will maintain a cautious approach, like Canada, New Zealand and Australia, with regard to negotiation. He emphasized that there was no need for such a treaty at the moment, noting that draft articles are being applied in practice despite not being included in a treaty.
MOHAMED FAIZ BOUCHEDOUB (Algeria) said that the draft articles are a consistent, balanced representation of customary international law that reflect broad State practice and the case law of international legal bodies. State responsibility in general is one of the main principles of international law, deriving from that of sovereign equality. Any legally binding instrument governing the responsibility for internationally wrongful acts would help promote the political acceptability of the rules contained in the draft articles. However, he noted that previous discussions in the Sixth Committee demonstrated that – despite general agreement amongst Member States on many of the draft articles that reflect customary international law – differences remain regarding a large portion of the articles. He therefore called on the Committee to allow Member States more time to reach a legal interpretation and analysis that would facilitate compromise on controversial aspects of the draft articles.
AZRIL BIN ABD AZIZ (Malaysia) said that the Sixth Committee should not initiate negotiations on draft articles as it might jeopardize the delicate balance of the texts. A full convention should only be pursued if there are realistic prospects for its wide ratification and acceptance. Non-universal or quasi-universal participation would defeat its purpose. In underscoring the usefulness of the draft articles in its current, non-binding form as a guide for States, international courts and tribunals, he called for the Secretary-General to continue compiling the decisions of international courts, tribunals and other bodies which refer to the draft articles. Instead of codifying the draft articles, existing mechanisms for international peace and security, including the International Court of Justice and Security Council resolutions, should be strengthened, he emphasized.
MARTÍN JUAN MAINERO (Argentina) welcomed the draft articles elaborated by the International Law Commission and noted that the documents have gone through exhaustive review period. Expressing regret over the little progress made, he also spotlighted the contesting views of Member States with regard to the elaboration of a draft convention. The time was ripe to consider both options to advance the debate, taking into consideration of delegations’ different perspectives. In this regard, he said he was in favour of negotiating a convention based on the respective draft articles, underscoring that the latter have been broadly implemented. However, the absence of a draft resolution would not diminish the value of the draft articles in question, he noted.
KATARZYNA PADŁO-PĘKALA (Poland) spotlighted the draft articles’ theoretical and practice importance in informing the practices of States, international courts and tribunals. However, the fundamental value of the articles should not lead to the automatic understanding that each provision must be considered as an established principle of law. The inclusion of any given rule does not change a general public law requirement to evaluate State practice and opinio juris for ascertaining the rule’s customary status. This can result in cases where a provision of the articles should not have been considered as a progressive development of international law in 2001 and its legal situation has not changed,. Conversely, international law has evolved and measures ‑ such as the collective countermeasures in response to violation of ius cogens norms – are valid means of action under the current state of international law. Regardless of their potential adoption as a convention, the draft articles are and will continue to be the living instrument of international law, she emphasized.
BAE JONGIN (Republic of Korea), highlighting the draft articles’ increasing weight and relevance, said it was still premature to consider the entirety of the draft articles as having the status of customary international law. There remain gaps in understanding as to what represents customary international law and whether a proposed convention would enjoy wider acceptance than the current version. He also expressed doubt about a consensus on elaborating a convention without revisiting outstanding issues and addressing newly emerging issues such as attribution and countermeasures in cyber security. Such controversies risk eroding the draft articles’ current standing as an authoritative restatement of international law, he warned. The Committee should therefore take a measured, step-by-step approach based on prudence and forethought when contemplating available options. In expressing his preference for the draft articles to remain as they are until the time is right, he urged the Secretary-General to continue compiling court decisions and State practice and request the Commission update its commentary of the draft articles.
LOUREEN O. A. SAYEJ, observer for the State of Palestine, said that States are responsible for upholding international law. The draft articles have established general rules for the breach of such law and the consequences that flow from such a breach. Further, the draft articles are customary in nature and universally binding in force, as they are widely invoked by international jurisdictions. She spotlighted the International Court of Justice Advisory opinion on the Legal Consequences of the Construction of a Wall in the occupied Palestinian territories. The Court addressed the content of Israel’s legal obligations arising from its wrongful acts and breaches of peremptory norms and erga omnes obligations; reaffirmed restitution, compensation and satisfaction as the primary forces of reparations for beaches of a serious and continuing character; delineated mechanisms for third States to uphold their obligations; and made it clear that its analysis could be applied to other situations of serious breaches of peremptory norms of customary international law, she said.
Right of Reply
The representative of Azerbaijan, speaking in exercise of the right of reply, recalled the full-scale war of Armenia against his country that resulted in the occupation of a significant part of Azerbaijani territories. He also recalled that international organizations and courts have recognized the gravity of this and have established that Armenia, exercising control of territories under occupation, was responsible for law violations on those territories. He further noted that his country will continue to ensure accountability for violations of international law in this regard.
Request for Observer Status
The Sixth Committee had before it the draft resolution for granting observer status in the General Assembly for the Digital Cooperation Organization (document A/C.6/77/L.2).
The representative of Saudi Arabia, speaking for the Digital Cooperation Organization, said that the organization currently includes eleven Member States with a total gross domestic product of $2 trillion and a young population. The organization was created to bridge the digital divide and to allow every person to have an opportunity to prosper within the digital economy. Its mission lies in allowing for and accelerating the digital economy globally, while also ensuring digital transformation. Since its inception, the organization has cooperated with Governments and stakeholders in the private sector, academia and civil society, to address challenges related to the digital divide. He underscored that observer status will enable the organization to strengthen cooperation with the Untied Nations in digital affairs and enable its participation in relevant meetings.
The representative of Oman, aligning himself with the Digital Cooperation Organization, expressed hope that Member States will support the draft resolution given the technical and non-political nature of this organization. He added that granting observer status to it will help strengthen cooperation between the organization and the United Nations in digital matters.
The representative of Pakistan, aligning herself with the Digital Cooperation Organization, pointed out that digitalization is driving profound changes in how economies work and societies function. Spotlighting digital technology’s role in the global response to the COVID-19 pandemic, she said that close coordination with the organization would help achieve the Sustainable Development Goals and provide information and experience relating to internet governance, data protection, cyber-security and the digital economy. She therefore called on Member States to adopt the draft resolution by consensus.
The Sixth Committee also had before it the draft resolution for granting observer status in the General Assembly for the Amazon Cooperation Treaty Organization (document A/C.6/77/L.3).
The representative of Bolivia, introducing the draft resolution, said the organization was the only one of its kind representing countries with more than half of the world’s rainforests. It was a forum for dialogue and cooperation with a view to promoting the harmonious, sustainable and inclusive development of the Amazon. The organization members also cooperated in the areas of integrated management of water and forest resources, health, protected areas, indigenous populations and other.
The region plays a crucial role in fighting climate change, as it contains one of the greatest reserves of the fresh water in the world and, possibly, the largest reserve of underwater reserves, he said, adding that it is also home to more than 400 indigenous communities. The observer status will enable the organization to strengthen its work alongside the United Nations and its specialized bodies. The result of the joint actions will be mutually beneficial and will strengthen the preservation of the environment and the rational use of natural resources, he added.
The representative of Peru, also speaking for Bolivia, Colombia and Ecuador, stressed that the countries for which he speaks are both Andean and Amazon States and, therefore, that this draft resolution is significant to them. The Amazon constitutes a large part of the territory of such States and is home to most of their indigenous populations, whose ancestral knowledge enriches their culture. Further, the Amazon has enormous potential for carbon-trapping and contains diverse flora and fauna.
He went on to underscore that preserving the Amazon is important for both addressing climate change and preserving biodiversity. Granting observer status to the organization will benefit the work of the United Nations and favour all Member States, he added, as the organization can share with the international community lessons learned that could be replicated in other parts of the world.
The representative of Brazil, adding his support for the draft resolution, recalled that the organization has been, for decades, developing important cooperation projects in the Amazon region relating to the protection of biodiversity, forests, water and the rights of indigenous people. Further, it has observer status in the United Nations Forum on Forests and actively contributes to the Forum’s activities. Granting the organization observer status in the General Assembly could add value to that body’s work, as the organization could pass on its experience relating to forests, biodiversity and water, he said.