Conference: The International Law Commission in the 21st Century: What should it be doing to make a contemporary difference?

Transcription

1 George Washington University School of Law Department of State Office of the Legal Adviser Conference: The International Law Commission in the 21 st Century: What should it be doing to make a contemporary difference? George Washington University School of Law, Washington D.C., 29 March 2010 The Role for Governments in ILC Projects How can the ILC best reflect needs and views of States? Alejandro Rodiles, Counselor for Legal Affairs, Permanent Mission of Mexico to the United Nations Let me first express my gratitude to the Legal Adviser of the US Department of State, Prof. Harold Koh, and to the George Washington University Law School for inviting me to this important conference. It is a great honour for me to share the podium with all these outstanding personalities in the field of international law. The International Law Commission has made it rightly clear that the distinction between codification and progressive development of international law, as stipulated in its Statute, is seldom viable in regard to the methods of work of particular subject matters, opting thus for a sort of mixed approach. However, it is still safe to say that the conceptual validity of this distinction reflects in a very accurate manner why the needs and views of States are so important for the Commission s work. Codification would be a futile exercise without a strict reliance on the views of those who can best transmit their own practices, whereas progressive development without due consideration of State s concrete needs could render the Commission s outcomes into reflections of a predominantly academic nature. It is only fair to notice, though, that for the most part of the past 62 years this has not been the case. The system based on the interaction between independent publicists and governments has proved to be able to strike the right balance between academic expertise and critical perspective, on the one hand, and concrete needs and realities in international affairs, on the other. However, this -for the most of the time- success history has only been possible due to continuous efforts and actions taken on both sides.

2 This shows that no matter how wise the system actually is, it needs an up-date from time to time. Do not worry. I do not pretend to bore you more than necessary by passing review of all UN General Assembly (GA) resolutions on these issues. Let me instead highlight some initiatives the value of which I have personally had the opportunity to experience, as well as to comment on the shortcomings my government believes these measures are still facing. Deliberations within the Sixth Committee of the GA, and the written comments and observations presented by governments on the topics under consideration by the ILC remain the most important channels for States to express their views and needs. The problems are well known: States do not react as desired, missing thus themselves the opportunity to express their views and needs, and leaving the Commission with major problems when it comes to its normative findings. As autumn in New York is concerned, it is true that we delegates often fall into generalities, giving so fewer insights on concrete juridical questions and problems, than, say, a good comment in an international law journal. Many positive measures have been already taken; especially since 1992, when the ILC decided to introduce a series of amendments to its Annual Report, based also on the recommendations made by the Special Working Group of the Sixth Committee on the ILC Report, in Nevertheless, States still opine that the ILC and the UN Secretariat do not take the practical difficulties they face in regard to the study of the Report sufficiently into account. The Rio Group, for instance, keeps insisting on how much States would benefit from receiving the entire Report a few weeks before the beginning of the GA, as well as on the necessity that questionnaires focus more on the main aspects of the topic and, most of all, that they be drafted in such a way that more States would be able to provide the needed input in a timely manner. I can not speak on behalf of other governments, but what is certainly true is that what the Rio Group pronounced formally in the Sixth Committee plenary is shared by many delegates; by colleagues who experience the same difficulties in their day to day work. 2

3 States have, no doubt, a great deal of responsibility in regard to the way the ILC Report is analyzed and discussed. Accordingly, some States have taken the initiative and came up with very interesting proposals. One of the most fruitful ones has proved to be the Swedish-Austrian initiative known as the international law week. Following this, the debate of the ILC Report is scheduled in accordance to the presence of the Legal Advisers from Capitals. This has certainly improved deliberations in the Sixth Committee. The bad news is that many States are not in a position to send the chief lawyers from their Ministries, who are most of the time solving urgent legal problems, much of the time of a bilateral nature. Quite the same is true for another initiative, an informal one, which was created also by Sweden, together with Canada, India, Poland and my own country. The Annual Meeting of the Legal Advisers of the Ministries of Foreign Affairs is practically part of the international law week, and has established a very good custom: to invite each year two ILC members, normally Special Rapporteurs or the Chair of a Study Group, in order to engage in a rather informal dialogue with the Legal Advisers on the status of their work and possible developments. Last year, the Mexican Legal Adviser, Ambassador Joel Hernández, who chaired the Xth Annual Meeting, decided to invite Profs. Giorgio Gaja and Georg Nolte. The idea of discussing a subject that is about to leave Geneva, together with a new one, proved to be very helpful for States, as in both cases comments and observations are of particular importance. I am sure that after hearing these presentations, my government and others will be in a better position to present written comments on the draft articles on responsibility of international organizations before its second reading, as well as to prepare in a more informed way their interventions for the forthcoming debate on treaties over time. Another step that has been taken with a view to enhance dialogue between ILC members and State representatives is the interactive or thematic dialogue. It is thought as an informal setting and should also be scheduled during the presence of the Legal Advisers from Capitals. Here again, the Rio Group has expressed its view that the topics to deal with during the interactive dialogue should be focused on fewer, particular 3

4 issues, and that the ILC, with the help of the Secretariat, should communicate them well in advance to member States, so they can be better prepared. Now, it is no secret that in UN language informal means a little bit less formal. As simple as it may sound, bringing Legal Advisers, Sixth Committee experts and ILC members together in a different location, such as missions or, even better, universities, together with law professors could promote genuine interactive dialogue and should be further encouraged. Improved communication is probably the most important requisite to enable States to be in a better position to transmit their needs and views to the Commission in a proper way. The special commemorative event that was held by the ILC in 2008, on the occasion of its sixtieth anniversary, proved to be extremely helpful for the Legal Advisers from Capitals. In view of this very positive experience, the possibility for State representatives to participate in a couple of ILC sessions each year could be further explored. Let me now turn to one of the issues that were considered during the said special session in Geneva: the selection of topics. I will not go into the question if States should or not do use of their right under the ILC Statute to submit proposals or even draft multilateral conventions to the Commission. The interaction between the GA and the ILC does function. My government feels comfortable with the reasoned discretion the Commission exercises in this regard, and with which the Sixth Committee has lived pretty well all these years. However, this does not exclude the perception by States that the ILC should listen sometimes more carefully to their needs and views when considering new topics or the continuing study of existing ones. An example of a less smooth episode took place in After concluding the draft articles on the prevention aspects of international liability for injurious consequences arising out of acts not prohibited by international law in 2001, the item was deleted from the provisional program of work of the Commission for its 54 th session, despite of the fact that GA resolution 56/82 expressly requested the ILC to resume its consideration of the liability aspects of the topic. 4

5 At the initiative of Mexico, a group of 19 States from three different regions issued a note verbal to the Codification Division, requiring the ILC to include the topic as mandated by the GA 1. The fact that the Codification Division responded that the agenda of the Commission is determined by the Commission itself, did not impede the ILC from reconsidering its decision, leading so to the elaboration of the draft principles on the liability aspects of the topic, and their adoption in Now, let me move from this particular incident to some broader considerations of the communication between States and the ILC in relation to the future work of the latter. Apart from the two weeks that the ILC Report is subject to debate in New York, the Commission is very present in Sixth Committee deliberations. In some cases, especially with new agenda items of the Sixth Committee, State representatives think out loud, if the topic s consideration would perhaps be more appropriate in Geneva at a later stage. Prof. Nolte has rightly mentioned that for the Commission to work properly it must absorb the insights derived from academic research and commentary, adding that this critical perspective enables the Commission to find common ground beyond the comparative assessment of the various positions expressed by different Sates. Indeed, there are some cases where objective research and academic reflection are the best means to de-politicize juridical questions and problems. In some other cases, States do not refer to the ILC at all. Still, however, they give some important clues on how they perceive the current state of affairs of international law, on how it is evolving, what challenges it is facing or even where it should be heading to. Here I can say without any hesitation that the rule of law debate within the Sixth Committee is a paramount example. Last year, when the rule of law at the international level was discussed, States opined on the importance of international law as a multilateral institution (Rio Group, Liechtenstein, Mexico, inter alia) whereas others highlighted the value of bilateralism (USA, e.g.). The role of informal arrangements, networks, coalitions, and, more broadly, of global governance, were mentioned by a number of States, among them Mexico, Liechtenstein and the United States. The importance of past and current ILC studies for the efficiency and coherence of the 1 The group consisted of the following States: Argentina, Bolivia, Brazil, Chile, Colombia, Finland, Guatemala, Hungary, Ireland, Italy, Mexico, The Netherlands, New Zealand, Peru, Portugal, Sweden, Switzerland, Uruguay and Venezuela. 5

6 international legal system, such as State responsibility and the responsibility of international organizations was underlined, for instance, by the Rio Group. I think that all these examples are of particular significance for the work of the ILC in the 21 st century. And as I have now touched upon the general subject of today s conference, let me comment briefly on what might be one of the most defiant contemporary challenges for some States in regard to codification and progressive development of international law. When we talk about State s ability to deliver comments and views on the work of the ILC in a timely and focused manner, we can hardly be talking in general terms. Asymmetries among nations do play an important role in regard to the evolution of international law. Every practitioner knows about the differences in size and infrastructure between international law teams from developed and developing countries. Suffice here to refer to the data-base of the Council of Europe on organization and structure of the Offices of the Legal Advisers from a variety of countries 2. This shortfall does not limit itself to governments. Academia faces similar difficulties in developing countries, and this diminishes to a great extent some States capabilities to play an active role in the shaping of international law. Hence, it becomes pretty obvious that not every State --and actually not a great deal of them-- is in a position to devote the time, human and financial resources the work of the ILC deserves. Ironically, many of these States have a strong national interest in codification and progressive development. In the 21 st century this situation faces new challenges. As the international agenda keeps growing and growing, the infrastructures of Foreign Ministries are in many States practically still the same as during the Cold War period. Indeed, the proliferation of international legal regimes still represents serious risks, if regarded under this perspective. Needles to say that these problems fall outside the realm of responsibilities of the ILC. They do nonetheless affect its work as a historical project, as it relates to the very 2 Available at: 6

7 question of whose international law do we want to progressively develop and codify in the 21 st century. Finally, let me refer to the issue of the nature of the Commission s outcomes. I would not be a Mexican delegate to the Sixth Committee, not even a Latin-American one, if I did not mention the importance my region attaches to the role of lex scripta in international law. According to its latest Statement in the Sixth Committee plenary, the Rio Group interprets Article 1 of the ILC Statute as the Commission s mandate to elaborate draft articles on the topics under its consideration. There are many reasons for this attitude. The most immediate ones relate to questions of legal systems and cultures, and, in particular, to the difficulties judges embedded in a very formalistic mindset face in our countries when it comes to the application of international law. Here again; the ILC is clearly not responsible for the decisions the GA takes on its outcomes. And I completely share the view of those who alert that the ILC has to take structural changes in international law into account, if it wants to continue to play its transcendental role. And it has, as the fragmentation study shows. Also do States have to stop to take some notions for self-evident truths, if they do not want to suffer indigestion from all the normative cocktails -as Prof. David Kennedy calls them- we are encountered with more and more often in the context of global governance. Now this being said, it is very important to recall that for a proper consideration of structural changes in international law we have to look at the whole, wide picture. This includes the actors that, for very good reasons, have a distinct approach towards change, or just a different view on how changes are to be addressed. If we look in a truly pluralistic sense to the whole, wide picture, we can actually recognize that the panorama has not changed that much for many States and communities; be this for good or for bad. It is for these reasons that I believe that in the 21 st century the main challenge for States will continue to be to find the proper channels to inform the International Law Commission on which tools are needed to maintain and further enhance the frames that hold the picture together. Thank you very much. 7