Statement by

His Excellency Mr. Mohamed Siad Doualeh

Ambassador, Permanent Representative of Djibouti to the United Nations

before

The Forum of Small States

on

Roundtable Discussion:

SMALL STATES AND THE FUTURE OF MULTILATERALISM

Tuesday, 24 October 2023

This is an auspicious moment for the Forum of Small States, and this dialogue held today in commemoration of UN Day and International Law Week could not be more timely.

The post-World War II rules-based international order is threatened as never before in the past 78 years. Today, wars of aggression, unlawful seizure and acquisition of territory, crimes against humanity, genocide and apartheid are plaguing the planet. All are violations of the most fundamental principles of the UN Charter and international law, and they are so egregious that they impact the entire international community wherever they occur. We are all, especially small States, threatened by a return to an older order, devoid of justice, where the strong do what they can and the weak suffer what they must: where there is no rule of law, and might triumphs over right.

For our own sake, and for the sake of our civilization and our posterity, we must stand together to prevent a descent into this morass. We must stand up, and stand together, to defend, revive and strengthen the rules-based order that is essential to international peace and security, and to our very survival. We must call out violations of the Charter, and of international law, that threaten this precious but precarious legal order, and insist on compliance. This is a necessary first step, but it is in no way a sufficient one. We must back our words with concrete deeds to hold lawbreakers fully accountable.

Small States have historically been champions of the Charter and international law. It is not difficult to explain why. We have the most to lose by a lawless world, where larger, stronger States can dominate smaller ones. There is a rich history of smaller States using international law, and international judicial procedures, to defend and reclaim their rights from depredations by larger and more powerful States:

• Palestine, in its relentless efforts to end the unlawful occupation of its territory, so that its people may exercise their inalienable right of self-determination, including their right to an independent State, as it is presently doing in the advisory proceedings that the General Assembly has initiated before the ICJ;

• Gambia, in seeking to hold Myanmar accountable for the horrific and unconscionable genocide it has carried out against its own Rohingya Muslim population;

• The Small Island States, whose very existence is threatened by climate change and its consequences, including sea level rise, and who have kindled advisory proceedings presently pending before both the ICJ and the International Tribunal for the Law of the Sea on the responsibility of States for contributing to global warming.

When wrongdoers are protected by the exercise of a Security Council veto, the rest of us must not passively accept their impunity. We can and must avail ourselves of the political and judicial organs of the international system to denounce their crimes, condemn them by overwhelming majorities, insist on their compliance with international law, and hold them accountable, especially when their violations breach peremptory norms of an erga omnes character. Here are some of the specific legal measures we could take, individually, or, even better, collectively:

• In cases of genocide or torture, we can take advantage of the erga omnes character of these crimes and the dispute resolution clauses of the applicable conventions to use international judicial means to bring a halt to these abominable practices – as Gambia has done in the case of the Rohingya genocide. But Gambia need not be alone in its quest to save the Rohingya and hold Myanmar accountable for its efforts to destroy them. Other States can intervene in the proceedings, and they should.

• Aggression and crimes against humanity also violate jus cogens norms of an erga omnes character and need to be expressly prohibited by international conventions that also provide for judicial enforcement. We need to hasten progress on the draft conventions that currently exist, and bring them into force as early as possible. We need to fully support the invaluable efforts of the International Law Commission.

• In 2018, Djibouti called for greater use of the Court’s advisory jurisdiction to strengthen the rule of law, in appropriate circumstances when a wrongdoer has not consented to the Court’s jurisdiction. Palestine and the Small Island States have followed this course. Palestine and the Small Island States need our support, and we should not hesitate to provide it. Indeed, there have been a record 56 submissions by States and international organizations in the Palestine proceedings, almost all of them in full support of the State of Palestine and the rights of the Palestinian people.

• Djibouti also called for more States to accept the compulsory jurisdiction of the ICJ under Article 36(2) of its Statute. Although more than 70 States have done so, the number has not materially increased in the last 10 years. There are few better ways for a State to manifest its commitment to the rule-based international order than by expressing its willingness to submit its disputes for resolution by the international community’s supreme judicial authority. The ICJ has proved time and again that it provides a level playing field, where smaller States can meet their larger adversaries as equals, and rely on the Court to resolve disputes equitably, according to international law, regardless of which States are before it. Djibouti once again calls on the FOSS members to consider accepting the ICJ’s jurisdiction.

• And finally, Djibouti urges cooperation among FOSS members when it comes to election of judges to the ICJ and to ITLOS. It is important to have balanced international judicial tribunals, and this means judges from small States as well as large. And judges who are the most determined to uphold the international legal order. In this, FOSS members have a common interest. We should band together to support those candidates who best reflect it. An election of five new ICJ judges is close upon us. We could begin our collaboration now, by determining which candidates are most sympathetic to what we stand for, and agreeing to lend our collective support to them. Djibouti is ready to join in this collaborative effort.

Thank you for your attention.