Statement by Andrew Rose, First Secretary and Legal Adviser
Permanent Mission of Australia to the United Nations on the Responsibility of States for Internationally Wrongful Acts
23 October 2007
(As delivered)
Mr Chairman,
Canada, Australia and New Zealand once again note our appreciation for the immense work of the Commission in bringing to a conclusion the “Draft Articles on the Responsibility of States for Internationally Wrongful Acts” and the associated commentary.
For over fifty years, delegations have observed the Commission grapple with the codification and development of one of the most complex and challenging areas of international law. We again wish to thank the Special Rapporteurs who have each added a new dimension to the final ensemble of tightly crafted principles. In particular, we note the contribution of Professor James Crawford SC, FBA, whose intellectual rigour and dedication saw the finalisation of this work.
Mr Chairman,
It has been almost six years since the adoption of UNGA Resolution 56/83, taking note of the Articles and commending them to the attention of Governments. We again face the big question mark over the future of the Articles: whether to negotiate the Articles as a Convention; whether to adopt the Articles in the form of a resolution or declaration; or whether to simply have the General Assembly take note of the Articles with no further action. For CANZ, this is a question not lightly dismissed.
The last six years have been spent contemplating the future of the Commission’s work in this area. In the meantime, international courts, tribunals and other bodies have referred to the Commission’s text and commentary. The International Court of Justice has referred to the Articles on a number of occasions, including most recently in its decision in the Bosnia and Herzegovina v. Serbia and Montenegro case in February 2007.
The Report of the Secretary-General released on 1 February 2007 on the Responsibility of States for Internationally Wrongful Acts provides a useful compilation of the decisions of international courts, tribunals and other bodies, which refer to the Articles. According to this Report, and the Addendum of 17 April 2007, there have been 130 judicial and quasi-judicial referrals to the Commission’s Articles and commentaries on State responsibility. These bodies, as well as Governments, have been guided by the Articles in analysing the sensitive issues at hand and finding resolutions. It is evident that there is a growing body of practice on utilising the Articles.
Mr Chairman,
CANZ reiterates our view that it would not be helpful to try and negotiate the Articles as a convention. CANZ seeks to avoid a course of action which might see the delicate balance of the Articles disturbed. We should not place ourselves in the situation whereby the current force and practical authority of the Articles is weakened through a convention that does not achieve wide adherence. We need to secure the benefits of the fifty years of the Commission’s important work on the Articles.
To acknowledge the Commission’s great achievement, we would support the adoption of a resolution endorsing the Articles and attaching them as an annex. CANZ maintains that this approach would ensure that the integrity of the Articles is maintained.
Mr Chairman
In closing, Canada, Australia and New Zealand are of the view that the Articles have proven their worth as a persuasive source of guidance for both Governments and courts. CANZ supports the endorsement of the Articles. However, we consider that the most appropriate method of endorsement, which would ensure the integrity of this valuable work, is to adopt the Articles as a resolution. Furthermore, the Articles should no longer be considered “draft”.
Canada, Australia and New Zealand are grateful to the Commission for its important work. We believe it is fitting for that work to be recognised and adopted within the General Assembly as a matter of priority.
Thank you Mr Chairman.