NEW YORK, 28 OCTOBER 2004
STATEMENT BY MR. LUÍS SERRADAS TAVARES, DIRECTOR OF THE DEPARTMENT OF LEGAL AFFAIRS OF THE MINISTRY OF FOREIGN AFFAIRS, TO THE SIXTH COMMITTEE OF THE 59th SESSION OF THE GENERAL ASSEMBLY (Agenda Item 139: Responsibility of States for internationally wrongful acts)
Since it is the first time I am taking the floor, allow me to congratulate you, Mr. Ambassador, on your election as Chairman of this Committee as well as to extend my congratulations to the other members of the Bureau.
We are here today to discuss the topic of "State responsibility for internationally wrongful acts". For my Delegation, this is a decisive moment in the history of the topic as well as of the 6th Committee itself. Let us seize that moment.
In 2001, when we had the chance to welcome the conclusion of the work by the International Law Commission (ILC),
paid special tribute to the ILC and to all the Special Rapporteurs who had dealt with the topic of State responsibility. We renew this tribute today. Portugal
As then, we continue to believe this is an area of international law that deserves to be incorporated into a legal instrument that will certainly contribute in a decisive way to the respect of international law and for peace and stability in international relations.
This is a topic that is maturing since 1949, when the ILC first selected the subject of State responsibility as being suitable for codification. It was one of the first topics to be selected by the Commission as meeting that criterion.
It is clear to my Delegation that the draft articles on State responsibility could and should constitute the third structuring pillar of the international legal order set up after the Second World War. They are the Charter of the United Nations, the Law of Treaties - already codified in the Vienna Convention of 1969 - and the consequences of internationally wrongful acts.
States must not be over cautious about moving forward in this area since our only concern is to establish the consequences of the international wrongful acts and not to provide for a definition of the wrongful act itself. State responsibility is only interested in the secondary rules and not on the primary rules which define the obligations of States. Furthermore, it could be done, if agreed, in the form of a contractual instrument.
If one wants convincing evidence for the opportunity and fundamental necessity to proceed in this field one only has to turn to State practice and to decisions of international courts and tribunals, including the case-law of the principal judicial organ of the United Nations, the International Court of Justice.
It would be senseless not to proceed in the development and codification of this matter and continue to proceed in others like diplomatic protection, liability and responsibility of international organisations when the main principles that guide the development of these latter subjects are the same that apply to State responsibility.
My Delegation strongly believes that the 6th Committee should carry on with this task. The General Assembly already adopted 18 Resolutions on this matter in 1961, 1963, 1967, 1968, 1973, 1974, 1975, 1976, 1977, 1978, 1979, 1980, 1981, 1994, 1995, 1996, 1997 and 2001.
On several occasions the General Assembly recommended the ILC to "expedite the study of the topic" (1967) and to "continue on a high-priority basis its work" (1976).
In 1996, the General Assembly "expressed its appreciation for the completion of the provisional draft articles" and in 2001 it took note of the articles on responsibility of States for internationally wrongful acts presented by the ILC and commended them to the to the attention of Governments.
This was done, as stated in paragraph 3 of Resolution 56/83, without prejudice to the question of their future adoption or other appropriate action.
After so many decades of maturation, in 2001 we allowed the subject to breathe for another three years.
In view of the above, action is needed. And right now. Several options are at disposal of the 6th Committee to proceed with this topic: moving towards a convention, although it would acceptable, in a first stage, to consider alternative ways like setting up an ad-hoc committee with a mandate to develop that possibility or to request States for final comments on this subject, with a fixed deadline.
is ready and at your disposal to cooperate in drafting a resolution that allows us to move forward, but keeping this item in the agenda for the next session in an effective manner. Portugal
Thank you, Mr. Chairman.