My delegation, which has the honour to speak on behalf of the States
members of the Rio Group, wishes to thank
Mr. Chusei Yamada, Chairman of the International Law Commission, for
the excellent introduction to the report
of the Commission on its fifty-second session. We are also grateful
to all the members of the Commission and, in
particular, to the Special Rapporteurs, for the work they have done
and the progress achieved on the various
topics that have been entrusted to them.
Mr. Chairman.
In his "Report on the work of the Organization", the Secretary-General
said that a legal framework of global
norms elaborated by the international community is of vital importance
and continued by saying that the
establishment of the rule of law in international affairs is one of
the main priorities of the United Nations in the new
millennium. He also made reference to the preamble of the Charter to
reiterate the need to create the conditions
under which justice and respect for the obligations arising from treaties
and other sources of international law
could be maintained.
In this connection, the Rio Group wishes to underscore the importance
of the work being done by the
International Law Commission to promote the codification and progressive
development of international law. The
texts drafted by the Commission have helped to strengthen security and
confidence in international relations and
their acceptance by States is a reflection of the international community's
commitment to be guided in their actions
by a comprehensive set of international juridical norms.
In this regard and given that the item on State responsibility could
be considered as one of the major components
of the international legal order, together with the law of treaties
and the law on the peaceful settlement of disputes,
we consider that the decision on the final form which the draft articles
elaborated by the Commission should take
requires very careful study. Despite the existing difficulties, the
countries members of the Rio Group would prefer
the adoption of a convention, in the conviction that it would constitute
an effective legal framework for the
settlement of disputes that may arise from the failure of States to
fulfil their international obligations.
Mr. Chairman, We should now like to make a few general observations
on the draft articles on State
responsibility and the other topics being considered by the International
Law Commission.
State responsibility
Even though the Commission is considering the item on diplomatic protection,
it is clear that its norms are no
different than other norms for the attribution of State responsibility.
It therefore seems to us appropriate that article
45 should include a rule providing that all available domestic remedies
must be exhausted before the responsibility
of a State can be invoked. With regard to Chapter 11. Part Two. on forms
of reparation, we welcome the
principle of full restitution, which has been fully established in international
law and accepted by the jurisprudence
in the case of the Chorz6w Factory, in which the Permanent Court of
International Justice found that reparations
must eliminate the consequences of the wrongful act "to the full
extent possible". Nevertheless and despite the
difficulties of establishing a general formula, we would like to see
reflected in the draft articles Guidelines on how
could be determined the amount of the compensation. On the question
of satisfaction, we recognize that it can
play a symbolic role and facilitate the settlement of disputes. States
represent communities, their values and in
many cases of international conflicts the non-material aspects of the
damage may assume great importance.
Mr. Chairman,
The Rio Group wishes to express its reservations on the use of counter-measures.
If included in the draft articles,
counter-measures must be the object of strict regulation to restrict
its application and prevent abuses. They should
be limited to the suspension of the international obligations due to
the responsible State. They may not involve the
use of force or affect obligations that have been established for the
protection of human rights, obligations of a
humanitarian character or obligations that arise from peremptory norms
of general international law.
Counter-measures must be proportionate, with proportionality being understood
as the minimum degree of
measures necessary to bring about compliance. As regards collective
countermeasures, we consider that these
pose serious difficulties and must be carefully reviewed by the Special
Rapporteur. We wish to reiterate the
strongest commitment of our countries to the principle of the peaceful
settlement of disputes. We wait for the
proposals of TLC on the peaceful settlement of disputes in the draft
articles on State responsibility.
We thank the Special Rapporteur for the work he has accomplished thus
far and encourage him to complete the
second reading of the draft articles by 2001 so that the Commission
could consider and adopt them at its next
session.
Diplomatic protection
In our view, the institution of diplomatic protection is a right of
States that States exercise at their discretion. We
also wish to state our firm rejection of consideration being given to
the possible use of force in exercise of
diplomatic protection. This has been a position of principle in our
countries since the Drago doctrine was
enunciated in 1902, according to which the protection of the interests
of nationals abroad cannot give rise to
armed intervention let alone to the occupation of the territory.
Recourse to the threat or use of force is prohibited in article 2.4
of the Charter of the United Nations and we
consider that the draft articles should reflect this fundamental norm
clearly and unambiguously along the lines of:
"The threat or use of force as a means of diplomatic protection
is prohibited".
We thank the Special Rapporteur for his first report on this topic.
Unilateral acts of States
The frequent and -rowing practice among States of taking unilateral
action that produces legal effects at the
international level has made it necessary to enunciate the general juridical
principles and customary norms that
govern such acts. The International Law Commission took up this item
in 1996 and in 1997 appointed Mr. Victor
Rodriguez Cedeño as Special Rapporteur to elaborate specific
rules to regulate the practice.
The Rio Group wishes to express its appreciation to the Special Rapporteur
for his third report and commends
him on his efforts in studying this topic, which involves not only codification
but also aspects of the progressive
development of international law. We are confident that his dedication
and efforts will lead to the early adoption of
a text to promote and guarantee stability and security in relations
between States, a basic consideration that led
the Commission to take up the study of this topic.
The diversity of unilateral actions is an obstacle to the elaboration
of common norms for all of them. A
classification of the unilateral actions would make it easier to determine
for which categories common rules can be
elaborated and to systematize the approach to the topic that should
finally be adopted.
In principle, there is good reason to believe that common rules can
be established with respect to the formulation
of the act, that is to say, the definition, the capacity of the State,
competence to act on behalf of the State and
grounds for the validity and nullity of these acts. Other aspects concerning
the juridical effects of the acts, their
application, interpretation, duration, suspension. modification and
revocation should be the object of certain
specific norms for each act.
Reservations to Treaties
The Rio Group welcomes and wishes to express its support for the work
done by the Special Rapporteur on this
topic. We consider that the five reports submitted thus far constitute
a very good basis for him to conclude his
work on the topic.
We note that several of the States members of the Rio Group have replied
to the questionnaire prepared by the
Commission on this topic and we are extremely pleased that the Rapporteur
has taken due note of our
observations in his report. This is a demonstration of the interest
that his study has aroused in our countries, an
interest also reflected in the statements made by various delegations
of the Rio Group in the Sixth Committee.
The topic of reservations to treaties is of great importance, insofar
as it relates to a basic element of the
international legal order, namely, the Law of Treaties. The Rio Group
considers that the work done thus far,
which has great richness and specificity, is consistent with the mandate
entrusted to the Commission and we
support the approach followed, which has been to fill lacunae and gaps
and. as far as possible, to clarify
ambiguities and doubtful points on the topic, without affecting the
Vienna regime on the Law of Treaties.
We also consider appropriate the approach to the treatment of the
topic adopted by the Commission, which was
to elaborate a Guide to the Practice. This set of rules and Guidelines
will five greater specificity to the norms in
force. In this connection too, we consider appropriate the decision
to include, where necessary, "model
provisions" to guide or assist States in any future agreements
or treaties that they may conclude.
International liability for injurious consequences arising out of
acts not prohibited by international law
(prevention of transboundary damage from hazardous activities)
The Rio Group takes note of and commends the Special Rapporteur on
his work on the draft articles on the topic
of prevention. In light of the need to integrate the aspect of prevention
and that of liability in the consideration of
this topic, we wish to emphasize that the Commission must continue its
consideration of the topic by focusing on
the identification and definition of the norms governing liability.
The Rio Group considers that the Commission
should give priority to this aspect, in fulfilment of the original mandate
entrusted to it by the General Assembly.
With regard to the draft articles on prevention and to the suggestion
made by some members of the Commission
that there should be no distinction between legal and illegal acts.
we are of the view that the reference to "acts not
prohibited by international law" should be retained, since the
draft articles refer to international liability in relation
to the management of risk and it is important to define this aspect.
Mr. Chairman,
With regard to the Commission's programme of work over the longer
term, the Rio Group wishes to suggest that
special consideration be given to the possibility of taking up the following
topics:
1. Liability of international organizations
2. Risk of fragmentation of international law, and
3. Status of the individual under international law
On the other hand, we believe that it would be appropriate to hold
a part of the session of the International Law
Commission in New York. By attending its plenary meetings, participants
would have timely knowledge and a
better understanding of the Commission's work, which would most certainly
result in more prompt replies to the
questions posed by the Commission to Governments on topics of particular
interest, thereby offering more
effective guidance to its future work.
Mr. Chairman,
The Rio Group wishes to conclude this intervention by expressing its
concern at the crowing tendency to favour
the development of the so-called "soft law". We understand
that "soft law" marks a transition between customary
law and treaties. We note that it leads to a practice that in many cases
has made codification possible.
Nevertheless, we do not believe that it should be used as a mechanism
to prevent the adoption of texts that have
binding force. The formalization of texts of the ILC in the form of
declarations or guidelines that are not
subsequently finalized into binding instruments is a tendency that hardly
contributes to the process of codification
and progressive development of international law. We wish to reiterate
what was said by the Secretary-General;
the establishment of the rule of law in international affairs is one
of the main priorities of the United Nations in the
new millennium. In our opinion, only if we strive towards this goal
will we have [he possibility of making reality the
principles of peaceful coexistence and international cooperation to
which the Charter of our Organization refers.
Thank you very much.
