Julian Simcock
Deputy Legal Advisor
U.S. Mission to the United Nations
New York, New York
November 6, 2019
AS DELIVERED
Cluster III
Succession of States in Respect of State Responsibility
General Principles of Law
Thank you, Mr. Chairman.
I will start our comments today with succession of States in respect of State responsibility, and on this, we can be relatively brief since the project is still in its early stages. The United States expresses its appreciation for the Special Rapporteur for this project, Pavel Sturma, for his work thus far. The United States looks forward to observing and commenting on this project as it develops.
In light of the fact that the Vienna Convention on State Succession in respect of treaties has not found widespread acceptance, we are concerned about the value of this particular project if it remains in draft article form. We appreciate that the Special Rapporteur, in his third report, acknowledges that the proposed draft articles would constitute the progressive development of international law, but respectfully suggest that draft guidelines or principles may be more useful.
This suggestion is based not only the prospects of success for a convention, but also on the substance of the initial draft articles. For example, we point to draft article 9. The United States does not yet have a position on draft article 9. We would point out, however, that practice in this area is uneven, and that determinations by predecessor or successor states to deny or accept liability are likely driven more by diplomatic and political considerations than by legal ones. We therefore, again, query whether this is appropriate for a draft article to be, in theory, considered for a convention, as opposed to draft guidelines or principles from which States can draw guidance in their diplomatic and legal negotiations addressing responsibility after State succession.
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I will turn next to general principles of law. Mr. Chairman, we have read with great interest the first report produced by Marcelo Vazquez-Bermudez, the special rapporteur for this topic and thank him for his work. We offer here some general comments in line with the preliminary nature of that report.
First, the United States shares the view that the focus of the ILC’s work on this topic should be on the concept of general principles of law and a clear methodology for how States, courts and tribunals may practically apply the concept. We likewise agree with the Special Rapporteur that an illustrative list of general principles of law would be impractical, incomplete, and would divert attention from the central aspects of this topic. Instead, we agree that any examples of general principles of law that the Commission may refer to in its work must be illustrative only and contained in the commentaries.
The United States also agrees that the element of “recognition” is essential to the identification of general principles of law. In this respect, we would underscore that the relevant analysis is whether a legal principle is recognized by States, by the community of nations. We agree with the unanimous view of the Commission that the term “civilized nations” is outdated and should be abandoned.
With respect to the possibility of addressing regional or bilateral principles of law, the United States is of the view that such principles would not be sufficiently “general” to come within the scope of the topic.
Finally, we note that the report addresses two categories of general principles of law: those derived from national legal systems and those formed within the international legal system. We have a number of questions and concerns about whether there is support for the latter category and whether there is sufficient State practice in the international legal system to determine whether a particular principle may be considered a general principle of law.
Going forward, it will be important for the General Principles of Law project for the Special Rapporteur to indicate clearly whether particular assertions are supported by State practice or should be understood as proposals for progressive development of the law. Certain portions of the first report seem to rely solely on references to academics or unsupported prior ILC assertions. We also query whether there will be sufficient State practice on the more granular questions of the functions of general principles, their relationship with other sources of international law, and the rules applicable to identifying general principles. In the absence of significant State practice on these points, there will not be a basis for making meaningful conclusions about them.
Thank you, Mr. Chairman.
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