Second Cluster Deliberations Concluded
Introducing the third and final cluster of topics from the International Law Commission’s annual report, its Chair presented to the Sixth Committee (Legal) today a detailed summary of the diverse and extensive work done on each issue.
Kirill Gevorgian, opening his remarks on the “identification of customary international law” said that the Commission’s efforts focused on the matter’s two components: “general practice” and “accepted as law” (opino juris). While the second of those elements had elicited general agreement as to its role in determining the existence of a rule of customary international law, views had diverged on whether the practice of States exclusively contributed to “general practice”, or whether the practice of international organizations was also relevant.
Another topic was the “protection of the environment in relation to armed conflicts”, which the Commission approached with a focus on legal measures taken to protect the environment before, during and after an armed conflict, he said. While there was support for such a temporal approach, and the preliminary report on the matter had provided an introductory overview of the environmental rules and principles applicable to a potential armed conflict, the Commission had had a substantial debate on the weight to be accorded the second phase, which would be addressed in a subsequent report on the topic.
Several delegations during the all-day debate voiced approval of the two-element approach to identifying customary international law, with Portugal’s representative stressing the importance of the dynamics between practice and opino juris, while noting the examination of “general practice” should be contemporary and reflective of differences from the world’s regions.
Peru’s representative, concerned with “protection of the environment in armed conflict”, said that when analysing the consequences of war, its adverse impacts on the environment must also be assessed, including pollution that came from fuel leaks, chemicals produced by bombs, unexploded ordnances and other remnants of war.
As the Committee concluded consideration of second cluster topics, the Special Rapporteur on the “protection of the atmosphere” responded to delegates’ comments, pointing out that the atmosphere flowed around the globe. It did not make sense to say “this is my air space, so this is my atmosphere”, as air space was a static concept limited in area.
He also underscored that the notion of a flowing atmosphere of common concern had been included in climate change, biodiversity and other conventions that had been widely accepted. There was a growing understanding in the international community that climate change and transboundary air pollution were related, leading to acceptance of the concept that there was “one atmosphere”. That could serve as a basis for international cooperation.
Also speaking today were representatives of Algeria, Sudan, Viet Nam, Republic of Korea, Israel, Russian Federation, Austria, Federated States of Micronesia, Norway (also speaking for the Nordic Countries), United Kingdom, Belarus, Greece, Ireland, Czech Republic, Switzerland, Netherlands, Poland, Singapore, Australia, Japan, Germany, Romania, South Africa, Spain, India, Trinidad and Tobago, and the Delegation of the European Union.
The Sixth Committee (Legal) would next meet at 10 a.m. on Wednesday, 5 November to conclude its debate on the Report of the International Law Commission.
The Sixth Committee (Legal) today would conclude its debate on the second cluster of topics from the Report of the International Law Commission and commence consideration of the third cluster. For background, see Press Release GA/L/3487.
MOHAMED SALAH EDDINE BELAID (Algeria) welcomed the adoption of the final report on the “obligation to extradite or prosecute (aut dedere aut judicare), saying that it would provide useful guidance to Member States, having covered all the issues the Sixth Committee had raised. Noting that work on “protection of the atmosphere” would proceed so as not to interfere with relevant political negotiations, he agreed with the Special Rapporteur on the topic that the most important decisions would be taken at the political level. The Commission, in its work, would not be expected to prescribe or substitute for specific decisions and action at that political level.
Turning to the “immunity of State officials from foreign criminal jurisdiction”, he said that it derived from immunity of the State. Citing a relevant judgment of the International Court of Justice in 2013, he pointed out that a State was not deprived of immunity when accused of serious violations of international human rights law or the international law of armed conflict. While that decision had not addressed the issue of State officials, the link between the immunity of State and of its officials should prevail when applying or defining the immunity of State officials from the exercise of foreign criminal jurisdiction. He concurred with draft article 5, focusing on the subjective scope of that category of immunity, as it referred to the official nature of the acts of the officials and emphasized the functional nature of immunity ratione materiae. Furthermore, the focus should be on codification of existing rules of international law in addressing the topic.
IDREES MOHAMMED ALI MOHAMMED SAEED (Sudan) reaffirmed support for the work of the Commission, but underscored that it needed to hold part of its meetings in New York so that observers could participate in its work and consider their recommendations and proposals. The Committee should “take that to heart” and formulate such a recommendation for inclusion in a draft resolution.
On the topic “protection of persons in the event of disasters”, he said the role of the affected State was in harmony with the principles of non-intervention and respect for State sovereignty. Stressing that the affected State must play the principal role in controlling relief operations, he said the term “principal” must be included in article 12(9). Concerning article 14(11), he emphasized the importance of the affected State’s approval in receiving assistance, while pointing out that external assistance should not be banned abusively. He called for clarification of that formulation.
Turning to the topic, “immunity of State officials from foreign criminal jurisdiction”, he said the question of immunity was a well-anchored principle in international law. Commenting on terminology in article 2, he noted that in international law there was no definition of “State representative”. As such, there was a need to find a definition for that term. Immunity from foreign criminal jurisdiction should be expanded to State officials, including all those who represented a State or assumed State functions, without consideration of their hierarchy. As for the scope of immunity, the concept should be expanded to encompass personal immunity after the end of functions assumed by those officials. Written proposals addressing those two topics would be submitted by his delegation.
NGUYEN THI MINH NGUYET (Viet Nam) said the “obligation to extradite or prosecute” was crucial in combating crimes of serious concern to the international community. The report of the International Law Commission had covered all the related issues raised in the Sixth Committee during the previous sessions, including the gaps in the existing conventional regime; the transfer of a suspect to an international or special court or tribunal as a third alternative for punishment of the offenders; and the relationship between the obligation and erga omnes obligation or jus cogens norms.
With regard to the legal effect of “subsequent practice in amending or modifying treaties”, she said she supported the second paragraph of draft conclusion 7. The possibility of modifying a treaty by subsequent practice could not be generally recognized, as such a scenario would be in discrepancy with a domestic law governing the conclusion of treaties, which stipulated that any amendments would be agreed upon by the concerned parties.
Concerning the “protection of the atmosphere”, she said that the Special Rapporteur should be accorded a certain degree of flexibility in his methodology, while at the same time maintaining compliance with the Commission’s 2013 Understanding. She welcomed the project’s focus on exploring possible international cooperation mechanisms; still, the lack of meaning ascribed to the term “a common concern of humankind” was a cause for concern.
Regarding the “immunity of State officials from foreign criminal jurisdiction”, she welcomed the provisional adoption of the first five articles with commentaries by the Commission. However, the definition of a “State official” was too general and needed more clarification. Concerning draft article 5, articles must be added on the nature of acts that could enjoy immunity ratione materiae. The Commission’s approach should balance the need to respect criminal jurisdiction immunity of State officials and to fight impunity.
Concerning the “Most-Favoured-Nation clause”, she welcomed the Commission’s adoption of five draft conclusions. The Study Group was moving in the right direction in setting forth the target of making the final report of practical use. Its outcome was expected to be a valuable source for treaty negotiators, policymakers and practitioners involved in the investment booming area.
YONGHOON CHOI (Republic of Korea) said that while the topic “obligation to extradite or prosecute” was an important one, a clear scope of its application could not be identified in a general or abstract manner. It should be determined and analysed according to a specific case, especially through a careful evaluation of the relevant provisions stipulated in an international convention or agreement. He expressed hope that the topic would be envisaged further in a new topic “crimes against humanity”.
Commenting on “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he stressed, in relation to draft conclusion 6, the need to distinguish treaty interpretation from treaty amendment or modification. The Commission should pay attention to that issue in order to reflect development of relevant international rules, given that some international courts and tribunals had accepted the possibility of modifying a treaty by subsequent agreement or practice. In relation to draft conclusion 9, he said the question of whether silence could be considered a subsequent practice in terms of treaty interpretation required case-by-case examinations. Moreover, silence could not be recognized as a subsequent practice in interpreting treaties delimiting a boundary.
Turning to the topic “protection of the atmosphere”, he said a clear distinction should be drawn between “territorial air” and “atmosphere”, given that the former pertained to national sovereignty while the latter did not. Future discussions on the topic should not influence topics which had been discussed or other existing relevant legal principles which had been applied. The Commission’s discussions concerning the topic should evolve into a guideline concerning the mechanism and procedure to strengthen the transnational global capability for protection of the atmosphere.
On “immunity of State officials from foreign criminal jurisdiction”, he said the definition of State officials should not extend to include all de facto officials. He said he supported use of the current term “State official”, noting that the choice of a specific term was not what was important, but how such term was defined. Concerning immunity ratione materiae, it would be better to explicitly refer to the former troika mentioned in commentary 4 of draft article 5 as beneficiaries of that immunity in the body text of draft article 5. Further, the Commission must take that into account when adopting draft articles regarding that immunity. He also said he was interested in defining “official acts”, which constituted the core element of immunity ratione materiae, and requested that the Special Rapporteur continue to find out lex lata on the basis of State practice without, nevertheless, excluding lex ferenda.
SHINYA MORASE, Special Rapporteur on the “protection of the atmosphere”, said that Sixth Committee comments would be taken into consideration in his next report. From the start, his position was that he would freely comply with the 2013 Understanding that the Commission would not interfere with political processes on the matter. The work would refer to existing relevant rules and principles and identify any gaps in treaties. The first draft guideline defining “atmosphere” was meant to enable the start of work on the topic. That definition noted that some 80 per cent of air existed in the troposphere and stratosphere. Therefore, those would be the focus of the work. It was also crucial to distinguish atmosphere from air space. The atmosphere flowed around the globe, while air space was static. He pointed out that it did not make sense to say “this is my air space, so this is my atmosphere”.
That concept and similar notions had been included in climate change, biodiversity and other conventions that had been widely accepted, he continued. There was a growing understanding in the international community that climate change and transboundary air pollution were related, leading to growing acceptance of the concept that there was “one atmosphere” of common concern to humankind. That would serve as a basis for international cooperation. As scientific understanding of the topic was needed, there would be meetings with scientists and experts from the United Nations Environment Programme (UNEP) and other relevant bodies in 2015. In his next report, he said he would elaborate some initial guidelines, expressing the hope that the topic would move forward.
Introduction of Report — ‘Third Cluster’
KIRILL GEVORGIAN, Chair, International Law Commission, introducing the final cluster of topics from the Commission’s report, said that 11 draft resolutions had been forwarded to the Drafting Committee on the “identification of customary international law”, of which that Committee had provisionally approved 8. Their final outcome should serve as a practical tool of use to professionals who were not experts in international law.
He said the work focused on identifying customary international law, and its two components: “general practice” and “accepted as law”. Looking at “general practice”, he said that views had diverged on whether the practice of States exclusively contributed to “general practice”, or whether the practice of international organizations was also relevant. On the second element, “accepted as law” (opino juris), there was general agreement regarding its role in determining the existence of a rule of customary international law. The next report would address the interplay between the two elements and various aspects pertaining to international organizations.
Turning to the topic, “protection of the environment in relation to armed conflicts”, he recalled that last year, when it was first included, it had been proposed that the topic be dealt with in temporal phases, addressing legal measures taken to protect the environment before, during and after an armed conflict. Thus, the preliminary report on the matter provided an introductory overview of Phase I, namely the environmental rules and principles applicable to a potential armed conflict, so-called “peacetime obligations”. There was support for the temporal approach, but substantial debate on the weight to be accorded Phase II, as well as discussion of whether the working definitions that would be developed to guide deliberations should be included in the final outcome.
The Commission generally felt that environmental principles and obligations discussed in the preliminary report required further analysis, he went on to say. Differing views had been expressed on the consideration of human rights as part of the topic. The second report on the topic would further examine aspects of Phase I as well as address Phase II, including analysis of the extent to which particular environmental principles were applicable in relation to armed conflict. The importance of receiving information from States concerning legislation and regulation in force was stressed.
On the “provisional application of treaties”, he said that at least four ways had been identified in which article 25, paragraph 1 of the Vienna Convention on the Law of Treaties might be manifested, namely: when a treaty established that it would apply provisionally from the moment of its adoption; when the treaty established that it would be applied provisionally by the signatory States; when the treaty left open the possibility for each State to decide if it wished to provisionally apply the treaty from the moment of its adoption; and when the treaty was silent on its provisional application and States applied article 25, paragraph 1. Since such provisional application could take the form of unilateral actions, a legal analysis of the effect of unilateral acts would also be relevant.
There was broad agreement in the Commission, he continued, that the provisional application of a treaty, although juridically distinct from its entry into force, nonetheless did give rise to legal effects and obligations which were the same as if the treaty were in force. Also noted was that the unilateral decision to apply a treaty could not be reconciled with article 25 of the Vienna Convention. There was no consensus, however, as to whether the regime applying to the termination of treaties applied mutatis mutandis to the provisional application of treaties. The next report on the matter would complete the analysis of the contributions made by States on their practice. The eventual outcome would take the form of draft guidelines or conclusions.
On the final topic in the Commission’s report, “the Most-Favoured-Nation clause”, the Commission had considered a draft final report on the topic, which had been under consideration since 2009, in anticipation of concluding the subject next year, he said. That draft analysed issues within the framework of general international law and in light of developments since the adoption of the 1978 draft articles on the matter. The draft report provided the background and addressed the contemporary relevance of such clauses; surveyed different approaches in case law to interpretation of such provisions in investment agreements; and made a detailed analysis of considerations concerning their interpretation. The importance and relevance of the Vienna Convention as a point of departure was stressed in the interpretation of investment treaties.
EGLANTINE CUJO, Delegation of the European Union, said, in regards to the “provisional application of treaties”, that the Commission could focus on selected issues that were important in practice and which had the potential of presenting a difficulty when parties decided to resort to such application. Among other matters, it could address the extent to which provisions involving institutional elements, such as provisions establishing joint bodies, might be subject to provisional application, or whether there were limitations in that respect; whether provisional application should also extend to provisions adopted by such joint bodies during provisional application; and whether there were limitations with regard to the duration of the provisional application. Recalling the Special Rapporteur’s intent to address the provisional application of treaties by international organizations, she said the possibility of provisional application of international agreements with third countries was explicitly envisaged in the European Union’s Founding Treaties and was often used in practice by the European Union.
She said that while the practice of States was central in the “formation of customary international law”, over the last decades international organizations had played an increasing role in international relations, including in norms setting. Those developments were particularly visible in the case of regional (integration) organizations, such as the European Union, which had legal personality and was subject to international law exercising rights and bearing responsibilities. Citing other characteristics of the European Union, she invited the Commission to consider those aspects as it further considered the role of the practice of international organizations on the topic. She welcomed the explicit inclusion of a reference to the practice of international organizations in draft conclusion 4 and asked that the text be retained when the Drafting Committee revisited that paragraph. As well, she urged the Commission to include specific paragraphs devoted to international organizations when dealing with the draft conclusions that followed.
SARAH WEISS MA’UDI (Israel), on “identification of customary international law”, in a detailed overview of the topic, emphasized the importance of draft conclusion 9 on the need for a relevant practice to be sufficiently widespread and representative in order to give rise to a custom. However, conflicting statements by various State organs on a particular practice weakened the weight to be given to such a practice. Actions of non-State actors were not “practice” for the purpose of formation of or identification of customary international law. Widening the scope of potential actors was fraught with risk of political bias and there was a question of how to limit the scope and nature of non-State actors. States were the sole developers of international rules of customary nature. Identification of such rules relied on comprehensive review of States’ actual practice coupled with opinio juris.
Furthermore, she said that the jurisprudence of international courts could provide a subsidiary means of identification, if it included comprehensive review and analysis of State practice. Political statements were not evidence of a customary rule. It was important to be cautious about “special” or “regional” customary international law, and further diversification of rules for the formation and evidence of custom in an already fragmented legal system would increase incoherence and uncertainty, causing greater discrepancies between States. The “two element” approach had been embraced by Israel’s High Court of Justice. She also supported the Special Rapporteur’s conclusion that not all international acts bore legal significance.
On the “protection of the environment in relation to armed conflicts”, she said the Law of Armed Conflict contained a body of rules and principles that adequately addressed the issue of environmental protection. Non-binding draft guidelines might be the preferred option for addressing the topic. Issues like protection of cultural heritage, the effect of particular weapons, and the refugee law were all addressed in other bodies of law. The scope of the discussion should focus on the defined subject matter. Human rights law was also separate and based on different principles from international environmental law.
The “provisional application of treaties” did not fall within Israel’s general policy on treaty law, she said, noting that a treaty could only be provisionally applied in exceptional circumstances, such as cases of urgency or of major political or financial significance that demanded prompt application. In those cases, prior approval from the Government was needed, including a statement on the extraordinary circumstances justifying provisional application.
The work carried out by the Study Group on the “Most-Favoured Nation clause” highlighted the complexities of such clauses in bilateral investment treaties, she said. Of particular interest was the question of the scope and coverage of such clauses in relation to aspects of dispute settlement mechanisms contained in bilateral investment treaties and the investment chapters in trade agreements. She reiterated the significance she attributed to the principle of consent between parties negotiating such agreements.
MARIA ZABOLOTSKAYA (Russian Federation) said she was pleased with the way work on “identification of customary international law” was going, noting that guidelines was the correct format as it allowed flexibility and provided good support for practitioners. However, it was still too early to say that expiration of time was not a necessary element for the establishment of customary law. The practice of international organizations could be used only as a subsidiary instrument for identification of State practice. The final product should enshrine the norm of customary law and should not run counter to the norm jus cogens.
On the topic “provisional application of treaties”, she expressed support for the Special Rapporteur’s approach, adding that it might be useful to study domestic legislation of States. She was interested in the role of domestic law where a State took a decision on the provisional application of a treaty. However, there were some questions regarding the Special Rapporteur’s qualification of the provisional application of treaties as a unilateral act. It was not covered by article 25 of the Vienna Convention where the procedure of provisional application was agreed and not voluntary unilateral. The Commission should, among others, further study the possibility of termination of provisional application of treaties.
Turning to “protection of the environment in relation to armed conflict”, she noted that the Commission had been unable to set down the scope of the theme. Recalling the International Court of Justice conclusion on the construction of the Israeli wall, she said that norms of human rights were applicable during armed conflict, but not in their entirety. Thus, other norms, including norms in the area of environmental protection, were applicable during armed conflict. Even so, the issue of whether norms of environmental protection were applicable during armed conflict needed further research. She voiced reservations with respect to the three-phased consideration of the topic. With respect to further work, she agreed with the constraints noted by the Special Rapporteur.
AUGUST REINISCH (Austria) expressed doubts about defining “customary international law” as proposed in the draft conclusions. The term was defined in in article 38 of the International Court of Justice Statute in such a way that was generally accepted outside of the Court’s ambit and a new definition did not seem useful. The wording proposed and “controversially debated” by the Commission could lead to confusion about the general concept. He said he was also unconvinced of the need to define “international organization” in the text of the draft conclusions, preferring instead to clarify the meaning of the term in the commentary. The “two-element approach” to identification of customary international law was welcomed. Potential norm-creating roles should be kept open for other actors than just States. The Commission’s acknowledgement that certain manifestations of acts and inactions could demonstrate “forms of practice” and “evidence of acceptance as law” in action was welcome.
The preliminary report on “protection of the environment in relation to armed conflicts” demonstrated that the entirety of international law on the protection of the environment would apply in Phase I. It was not necessary to discuss the whole range of environmental law under the topic; the main emphasis should fall on the relationship between environmental law and international humanitarian law. The term “environment” was defined differently in several different international legal instruments, but the definition used by the Commission seemed an appropriate starting point. A definition that related to cultural heritage would be too broad. Regarding the term “armed conflict”, he favoured application of the definition used in international humanitarian law, which encompassed international and non-international armed conflicts, but did not include internal disturbances, like riots.
On “provisional application of treaties”, he said it was possible to question whether article 25 of the Vienna Convention could be interpreted as permitting a State to unilaterally declare the provisional application of a treaty if the treaty itself was silent on the matter. Provisional application was deemed to establish treaty relations between State parties so that unilateral provisional application could oblige States parties to accept treaty relations without giving consent. Without a special clause in the treaty, unilateral provisional application could only take place if it could be established that States parties had agreed to the procedure in some other manner under article 25 of the Convention. That conclusion did not, however, rule out the possibility that a State committed itself to respecting the provisions of a treaty by means of a unilateral declaration without obtaining agreement of the States parties. Application resulting from universal declaration could only lead to obligations incumbent upon the declaring State.
JANE CHIGIYAL (Federated States of Micronesia) described the act of entering into a treaty as “a momentous affair in international law”. Given the far-reaching ramifications of treaties, it was important that parties knew when a treaty actually applied and bound them, particularly if that occurred before the treaty was entered into force. Though her country was not a party to the Vienna Convention, she pointed out that article 25 was part of customary international law. The Special Rapporteur had taken a practical approach to the subject which would enhance States’ understanding of the actual functions of the mechanism and hopefully broaden its use.
Giving an overview of the interplay between the use of the mechanism and the legal rights and obligations such use implied, she encouraged the Special Rapporteur to consider the legal distinctions that might exist between provisional applications of treaties that had not yet entered force internationally but which had been ratified domestically, and treaties that that had entered into force internationally but which had not entered into force for the State because of delays in the ratification process.
ANGEL HORNA (Peru) said that although there was no international legislation dealing with the “protection of the environment in armed conflict”, the framework of obligation to respect that environment in peace time had been consolidated. When analysing the consequences of war, its adverse impacts on the environment must also be assessed, including pollution that came from fuel leaks, chemicals produced by bombs, unexploded ordnances and other remnants of war. Its adverse impact on massive population displacement and its effects on ecosystems also needed to be assessed. International conventions regulated nuclear, chemical and biological weapons. However, new technologies, which implied threats that were still unknown in relation to the environment, must be taken into account. Parties in hostilities must observe international agreements, such as the Geneva Convention, in order to regulate how war developed.
ØYVIND HERNES (Norway), speaking also for Denmark, Finland, Iceland and Sweden, among other comments, agreed with limitations on the scope of “identification of customary international law”, as well as the exclusion of the issue of jus cogens in the conclusions. The general standard for determination of State practice should be whether or not an act was attributable to the State in question, and the standard for attribution should be the same as under the rules of State responsibility. In regards to inaction, that could be evidence of acceptance of law but specific circumstances should be further explored. International organizations could create custom, particularly where such organizations had been granted powers by Member States to exercise competence on their behalf in, for example, international negotiations. Such practice could contribute to the creation of custom.
It was vital to enhance protection of the environment before, during and after armed conflict, he said, calling for clarification of existing international law that could help achieve that. Viewing environmental protection through the lens of the Law of Armed Conflict was “clearly too narrow” a view. The Commission had stated that armed conflict did not ipso facto terminate or suspend operation of treaties and had provided an indicative list of treaties that continued to operate. There should be no strict line drawn between the three Phases of conflict and it was necessary to clarify obligations applied during armed conflict in order to reduce environmental damage. An empirical study was being conducted by the Group of Nordic Countries into the environmental impacts of armed conflicts, and an international expert meeting would be held to discuss the existing legal framework and identify any gaps before presenting conclusions to the International Conference of the Red Cross and Red Crescent in 2015.
He voiced support for the decision by the Special Rapporteur not to embark on a comparative study of domestic provisions relating to “provisional application of treaties”, as the choice to apply a treaty was essentially a constitutional and policy matter. Provisional application led to legal effects, according to the Commission, and could give rise to legal obligations as if the treaty was in force. He believed provisional application under article 25 of the Vienna Convention went beyond the general obligation not to defeat the object and purpose of a treaty prior to its entry into force. It was worth considering whether the Commission’s work would benefit from further analysis of different models of provisional application. More information on State practice would be useful in that regard.
RITA FADEN (Portugal) said that the “identification of customary international law” should be looked at in terms of the dynamics between practice and opino juris. The most difficult theoretical question was the importance to be assigned to opino juris in that equation. Opino juris should be studied without regard to the relevance of “subjectivity’ in international law. The examination of “general practice” should be contemporary and reflective of differences from the world’s regions. Caution should be taken in assessing State practice since only a few States could provide a precise repertoire of practice. As well, the practice of international organizations was relevant.
On “protection of the environment in relation to armed conflicts”, she cited the Rio Declaration, pointing out that peace, development and environmental protection were interdependent and indivisible. Agreeing with the temporal approach to the topic, she said that Phase II was most important. If existing legal obligations were insufficient, the Commission should consider embarking on a progressive development exercise. Furthermore, non-international conflicts should be included in the scope of the topic; a UNEP report on the issue had suggested “`that at least 40 per cent of all intrastate conflicts over the last 60 years have a link to natural resources’”. She also expressed support for the inclusion of human rights as part of the topic.
Turning to the “provisional application of treaties”, she agreed that such application gave rise to legal obligations, pointing out that it was common treaty practice to include a clause making provisional application dependent on its compatibility with domestic law. Therefore, both parts of the equation should be studied. The Commission should also consider the legal regime on the provisional application of treaties between States and international organizations.
Pointing out that there were different understandings on the correct interpretation of the “Most-Favoured-Nation clause”, she said the survey the Commission had conducted on the various trends and approaches to interpreting the clause was already a good outcome. “There is a limit to the degree of harmonization and uniformity that one can expect when it comes to the interpretation of MFN clauses,” she said, adding “[a] forced [uniformity] of practice and jurisprudence without any support in practice could result in a solution devoid of content.”
PAUL SCULLION (United Kingdom) voiced support for the “two-elements” approach to “identification of customary international law”, which assessed State practice and opinion juris. The topic should not cover jus cogens in detail, as that was a separate question. The outcome of work on the topic should be essentially practical in nature, in line with the Commission’s intention, and should take the form of conclusions with commentaries that would serve as tools for judges and practitioners.
He welcomed confirmation that the Special Rapporteur on “protection of the environment in relation to armed conflicts” would focus on Phases I and III (the pre- and post-conflict phases) and that there was no intention to modify the law of armed conflict. The proposal to produce guidelines related to Phase II “could be a useful initiative” but only if those guidelines were confined to the environmental field and if they recognized that the law of armed conflict was a lex specialis with existing rules about protection of the environment. The Special Rapporteur was right to exclude subjects like exploitation of natural resources, protection of cultural heritage and the effect of particular weapons from the scope of the topic, as “undecided and often controversial questions of international environmental law, human rights law, or the rights of indigenous peoples” should not be addressed. Internal disturbances like riots should also be excluded, and States should not be obliged to prepare environmental impact assessments as part of military planning. The topic lent itself more to establishment of non-binding guidelines than to a convention.
He said he was disappointed not to see more detailed reporting of State practice in the report related to “provisional application of treaties”, noting that he hoped for much more in the next report, as a broader picture on State practice was vital before presentation of conclusions. On the “Most-Favoured Nation clause” topic, he welcomed progress by the Study Group on a substantial and technical review and supported the Group’s ambition to shorten the report and update the current draft in light of recent cases. Also welcomed was the Group’s determination to ensure that the final report was of practical utility to those involved in the investment field and policymakers. It would not be appropriate to develop any draft articles or revise the 1978 draft articles on the Most-Favoured Nation clause.
ANDREI POPKOV (Belarus) said he supported the two-phased approach on “identification of customary international law”, noting that the consideration of evidence of customary international law was related to the clarification of general practice. It would be more logical to expand the scope of the draft conclusion regarding the generally accepted standards of jus cogens and norms of international law. The notion of common practice should not narrow the topic of the subject under consideration. He welcomed the Special Rapporteur’s intention to examine bilateral custom, as well as special or regional norms of customary international law.
He said, in regards to “provisional application of a treaty”, that a distinction must be made of the legal consequences at the national and international levels between such applications and a treaty’s entry into force. For an international obligation to arise in the context of provisional application, what was important was not only the readiness of one subject to provisionally apply a treaty, but the agreement of at least one other subject to acknowledge that kind of application.
On “protection of the environment in relation to armed conflicts”, he said there was a need to focus on the question of which area of law was lex specialis in the protection of the environment, whether it was environmental law or the law of armed conflict. In codifying and progressively developing that area of law, the level of socio-economic development of States must be taken into account. It was necessary to establish minimal practical-oriented standards. It was also necessary to have a well-balanced approach to the language, which could change the classical definition of armed conflict.
He also said that the Commission should consider results of work in the “protection of persons in the event of disasters”. Moreover, the legal content of sustainable development, the precautionary principle and prevention would be useful not only for the topic, but also for the progressive development of law as a whole.
MARIA TELALIAN (Greece), commenting on the “identification of customary international law”, said that, while she concurred with the general applicability of the two-element approach, the variation of the respective weight of those elements in certain fields of international law should be further explored. Furthermore, the reference to inaction as a form of practice for the purpose of identification of customary international law should be qualified. It would be useful if the Commission provided some guidance on the interrelationship between treaties and custom, as well as general principles of law and custom. Finally, the issue of the law-creating effects of resolutions adopted by international organizations deserved particular attention as they might reflect, under certain circumstances, the collective opinio juris of the States concurring with their adoption.
Regarding the “protection of the environment in relation to armed conflicts”, she supported the three-phased approach, and said that one could not disregard the issue of the protection of natural heritage, which was a prominent part of the environment. Concerning the obligation of prevention, the “no-harm rule” in its entirety should be scrutinized with regard to its application in case of armed conflict. In regards to human rights, the future reports should take into account, in addition to the already mentioned right to health, food and acceptable living conditions, the debate about an emerging right to water.
Concerning the “provisional application of treaties”, she noted that the Special Rapporteur should engage in a more thorough analysis of the circumstances under which States had recourse to the provisional application of treaties before determining its legal effects. Furthermore, the decision to provisionally apply a treaty also depended on the national legal requirements of the State concerned. Reliance on relevant State and judicial practice was also crucial when examining the consequences arising from a breach of an obligation in a treaty being provisionally applied. The assumption that the rules on responsibility for international wrongful acts should apply in that respect required further consideration, and it would be premature to draw a conclusion thereon.
TREVOR REDMOND (Ireland), associating himself with the European Union, said that the outcome of the work on the “identification of customary international law” must provide clear guidance for those working at the international level and for practitioners in the domestic sphere, while at the same time not being unduly prescriptive. Regarding draft conclusion 2, the delicate interplay between the two constitutive elements required further consideration, particularly on the potential temporal implications of the current draft, as well as the question of “double-counting”. He also voiced support for a cautious approach to addressing the inaction of States as a form of State practice. The two proposals to incorporate inaction within paragraph 2 of draft conclusion 6 were welcomed, rather than maintaining it as a stand-alone paragraph. It was “under certain circumstances” that practice might take the form of inaction.
Concerning the “provisional application of treaties”, he welcomed the report’s focus on the substantive legal effects of such application at the international level. While the effect of a unilateral commitment to provisionally apply all or part of a treaty was an interesting aspect, a clear distinction should be maintained between principles or conclusions relevant to such unilateral acts, and the consideration of mutually agreed provisional application of a treaty by the parties thereto. In that regard, he also suggested that, in relation to certain aspects of the topic, it might be helpful to have a more separate consideration of bilateral and multilateral treaties.
PETRA BENEŠOVÁ (Czech Republic), commenting on the “protection of the environment in relation to armed conflicts”, voiced support for the three-phased approach, but outlined certain difficulties and uncertainties in current discussions of the topic. The Commission should clarify the rules and principles of international environmental law applicable in relation to armed conflicts, without modifying the law of armed conflicts itself. Furthermore, a clear differentiation between the protection of the environment and the protection of cultural heritage should be made.
Concerning the “identification of customary international law”, she noted the preservation of the “two-element” approach, and considered practice and opinio iuris as constituent elements of an international custom underpinning the integrity of international law. She recommended that widely recognized concepts of “general practice” and “accepted as law” be referred to, and welcomed draft conclusions 10 and 11.
DAMARIS CARNAL (Switzerland), noting that the next report on the “protection of the environment in relation to armed conflicts” would focus on applicable law during international and non-international armed conflicts, said that the term “armed conflicts” would have to be defined. That definition should be based on the definition used by the International Criminal Tribunal for the former Yugoslavia in its judgment in the Tadic case and subsequent jurisprudence. Thus, it would include armed conflicts between organized armed groups. Furthermore, she requested more information on how the conclusions and recommendations from the three temporal phases could be synthesized, as some of them might apply at all phases. The role of other bodies of law, particularly human rights and international environmental law in the matter would need clarification.
MARCEL VAN DEN BOGAARD (Netherlands), on “identification of customary international law”, questioned whether it was possible to “borrow” the attribution rules from the Articles on State Responsibility. He also sought clarification on the confidentiality of Government correspondence, which might attest to opino juris and thus were relevant to the identification of customary law. However, it was not clear how confidential documents could be relevant unless they were published, and what that might imply for unpublished legal opinion. When addressing forms of practice the emphasis ought to be on actions of States that could be noticed in daily life; practice was the objective element in the development of customary international law. He asked how “specially affected States” would be identified. He also pointed out that technological developments raised specific questions concerning the identity of “specially affected States”, such as when law developed as a consequence of the development of weapons technology.
Turning to the “protection of the environment in relation to armed conflicts” he agreed with the cautious approach of the Special Rapporteur. The overall purpose of the study would be to clarify rules and principles of international environmental law to armed conflicts and should not modify the existing Law of Armed Conflict. While there was a need for a working definition of “armed conflict” that definition should not be included in the final text, as it was already defined by international humanitarian law.
On the “provisional application of treaties” he sought further clarification on the distinction between the legal regime with respect to entry into force of a treaty and that governing its provisional application. A thorough analysis of State practice in light of article 25 of the Vienna Convention was needed to determine the status of the concept under customary international law.
WLADYSLAW CZAPLINSKI (Poland) said that, while States were the basic subjects of international law and their practice the most significant, an approach that reduced the influence of non-State actors on the creation and application of customary law to its acceptance by States could hardly be accepted. In that regard, it would be desirable to investigate to what extent non-State actors were bound by general customary law. A clarification of the relationship between custom and other sources of international law would also be appreciated. The Commission should consider whether the criteria of relationship between treaties and custom corresponded with the new developments of international law. It should also discuss the issue of a parallel binding force of two sources of the same normative content, but contained in two different categories of sources.
He said his country’s policy on “protection of the environment in relation to armed conflicts” was applied by the Ministry of National Defense. In addition, legislation had been adopted and annual reports were drawn up to assess performance related to environmental protection.
On the topic “provisional application of treaties”, he said, among other comments, that his country did not have a specific domestic law on the provisional application of treaties. Its practice was based on article 25 of the 1969 Vienna Convention on the Law of Treaties and the general rules of domestic law regarding conclusion of the treaties. The Special Rapporteur should include a comparative analysis of national provisions concerning the provisional application of treaties in his further research. Also, attention should be paid to the practice of States that were members of regional integration organizations where those organizations (acting independently from their members) could conclude treaties which were binding for the member States. As well, the practice of issuing unilateral declarations which defined the scope of the provisional application of a treaty must be further examined.
LUKE TANG (Singapore), on the “identification of customary law”, called for considerable caution when assessing the practice of such organizations, largely because of the wide variations in international organizations’ organizational structures, mandates, composition of decision-making bodies, and other areas.
Turning to the “protection of the environment in relation to armed conflicts”, he said some fine-tuning was still to be done on the scope and methodology of the study, adding his support for the temporal, three-phased approach. That division would help with study and debate of the issue, and with the drafting of the eventual outcome document, though it was important to avoid a strict dividing line between the different phases. In terms of scope, the study should not delve into consideration of possible effects of particular weapons on the environment. The report had focused on the pre-conflict period but included, among the rules and principles it identified, concepts that may not as yet be “universally accepted”. The Commission could continue to trace the development and level of acceptance of those concepts, which in turn would affect the question of their applicability. The outcome of the work could be a set of non-binding draft guidelines.
On the “provisional application of treaties” he said it could give rise to legal obligations as if a treaty itself was in force. He looked forward to the Commission’s study of whether or not provisional application could result in modification of a treaty’s content. There may be overlap with the topic on “subsequent agreements and subsequent practice”. Further work of the Commission should cover modalities for termination of provisional application and the applicability of the regime on reservations to treaties.
The topic of the “Most-Favoured Nation clause” had been followed closely, he said; his country was party to a significant number of bilateral investment treaties and free trade agreements that contained such clauses. There was an abundance of cases on the Most-Favoured Nation clauses, particularly in the context of investor-State disputes, which merited in-depth study.
BILL CAMPBELL (Australia), on the topic “provisional application of treaties”, said his country had a dualist approach to treaty interpretation. A treaty had no effect unless it was incorporated formally by legislation. For each State, domestic law was key to the provisional application of a treaty by that State. The source of obligation was the treaty itself and not the declaration of provisional application.
He welcomed progress made in discussions on the “Most Favoured-Nation clause”. Expressing agreement with the Study Group’s conclusion, he stressed the importance of the Vienna Convention on the Law of Treaties. It was the point of departure for the clause. He expressed support for the objective to produce an outcome that would be practical and useful for policymakers, as well as those involved in investment field.
TOMOYUKI HANAMI (Japan), commenting on the “identification of customary international law”, said that the outcome should be a practical tool of value to practitioners who were not specialists in international law. He expressed support for the basic two-element approach to the identification of rules of customary international law. There appeared to be different approaches to identification in different fields of international law, however, and he was not sure whether such alternative methods could be applied in certain areas. Furthermore, he deemed that the acts of non-State actors should not be necessarily considered as “a general practice” constituting the elements of customary international law.
Regarding the “protection of the environment in relation to armed conflict”, he noted that the temporal three-phased approach had attained some support. However, the certain weight of the project should be accorded to Phase II. Some members had suggested that the Commission should not focus its work on that area as the law of armed conflict was lex specialis and already contained sufficient rules related to the protection of the environment. However, the interrelationship between international environmental law and humanitarian law in the period of armed conflict, to be covered in the deliberation of Phase II, should be one of the major points discussed under that topic.
MARTIN NEY (Germany), commenting on the “identification of customary international law”, supported the adherence to “general practice” and opinion juris as the two elements for any rule of customary international law. As well, the wording of draft conclusion 4, paragraph 1, which confirmed that States were the primary subjects of international law, was supported. Regarding draft conclusion 7, paragraph 2, he said he agreed that practice should be unequivocal and consistent. However, the wording used might lead to less weight being given to the practice of countries with an open and pluralistic society, where the independence of the judiciary and the juxtaposition of the Government and parliament might lead to different views.
Concerning the “provisional application of treaties”, he noted that the legal effect of it was a matter of public international law, while its domestic requirements and repercussions were a matter of domestic law. Parties intending to apply a treaty provisionally should first consider whether their domestic legal situation permitted such application; whether it enabled them to comply with the provisionally applied treaty as a binding obligation; and whether they were determined to do so. “Opt-out” clauses might be needed in multilateral treaties as the necessary safeguard for those State parties which, for reasons of domestic law, could not agree to provisional application so easily.
CORINA-MONICA BADEA (Romania), commenting on the “identification of customary international law”, supported the view that inaction may be deemed as “practice as a constituent element of customary international law, but only where it resulted from the consciousness of a duty not to act”. She also welcomed the reference to international organizations, recognizing that their role must also be considered in relation to the existence of customary international law. Therefore, the use of “general practice” instead of “practice of States” was most appropriate.
Concerning the “protection of the environment in relation to armed conflict”, she called for a closer look at State practice and the practice of international organizations. Furthermore, there was no need to separately address the effects of certain weapons on the environment. Finally, should there be a need to address cultural heritage within that topic, great care should be taken. Furthermore, it should not unnecessarily expand the scope of the topic or revise norms of international law already in place dealing with the protection of cultural heritage.
Regarding the “provisional application of treaties”, she said that her country had in its legislation relevant provisions concerning such application, which was viewed as an exceptional treaty action of limited applicability. Only treaties, of which ratification by Parliament was not required, could be applied provisionally as of the date of signature, if the treaty expressly allowed it. Treaties for which ratification by Parliament was compulsory could not be applied provisionally. One exception from that rule existed, namely treaties between the European Union and its member States, on the one side, and third States, on the other. Those could be applied provisionally before entry into force if the treaty expressly provided so. Further examination should consider the issue of termination of provisional application, as well as the question of the provisional application of treaties by international organizations.
With regard to the “Most-Favoured-Nation clause”, she said that consideration should be given to all the significant developments since the adoption of the 1978 draft articles. Furthermore, the need to analyse and put them forward within the broader normative framework of general international law should also be considered, thus limiting further fragmentation of international law and difficulties arising from its diversification and expansion.
ANDRE STEMMET (South Africa), on the “identification of customary international law”, said, among several detailed comments, the two-element approach, with the preference for use of the term “a general practice” over “State practice” was welcomed. The language of article 38 of the Statute of the International Court of Justice could be relevant to the practice of international organizations, since State practice took many forms, including work in international organizations. The term “accepted as law” had been theoretical and he said he hoped to see more of a practical element developing over time. The term opinio juris could be used over “accepted as law”. The two elements should not follow in a specific temporal order, with each element more important than the temporal order in which they might be manifested. Work on the topic should result in a practical guide to assist practitioners in identifying customary international law and the decisions of international courts and tribunals were among the primary materials for seeking guidance on the topic.
He went on to say that the phased approach on “protection of the environment in relation to armed conflicts” showed merit; he looked forward to hearing whether the different themes or legal regimes that were applicable would in fact be easier to study through a broader approach focusing on all applicable laws. On Phase I, which dealt with potential armed conflict, rules beyond the environmental sphere could have some applicability. Phase II — during conflict — should go beyond environmental principles, to include human rights law, international criminal law, and international humanitarian law. Protection of the environment could also be relevant to causes of conflict and factors prolonging conflict. Access to and benefit from natural resources was often a root cause and some exploration of that aspect could be useful. However, it was too premature to recommend a “soft law instrument or normative approach” as the outcome to the work.
In regards to the “provisional application of treaties, he said a State’s ability to exercise such a provision was a question of the municipal law of the State concerned. The effectiveness of a treaty regime during the provisional phase may therefore depend on the attitude adopted by the national legal systems of its parties. Therefore, it was important to consider if it was necessary and possible for a provisionally applied treaty to become part of domestic law, and, if so, whether the courts could actually apply it. South Africa’s 1996 Constitution accorded an enhanced status to international law. The Special Rapporteur may wish to consider the relevance of the South African case with respect to the matter.
JOSÉ MARTÍN Y PEREZ DE NANCLARES (Spain), associating himself with the European Union, said that regarding “identification of customary international law”, the use of the term “methodology” in draft conclusion 1 could lead to confusion. Regarding draft conclusion 4, the reference to the “circumstances of the case” did not add much when there was already a reference to the need of taking account of the “overall context”. Concerning draft conclusion 5, nobody doubted the crucial role of States in the formation of customary international law. Nevertheless, the internal development level and protagonist role in the international arena of certain international organizations, such as the European Union, must be duly acknowledged. With regard to draft conclusion 7, it was important to carry out a deeper analysis of the questions related to inaction and the relationship between custom and acquiescence. As far as draft conclusion 9 was concerned, the practice should be ambiguous and sufficiently general and uniform.
The topic of the “protection of the environment in relation to armed conflicts” posed several problems, he said. Among others, its objective was very difficult to define as it was not easy to draw a dividing line between the three study phases proposed. He also said he wondered how the Commission would be able to identify obligations related to the protection of the environment in internal armed conflicts, without having to expand on such obligations, taking into account that such conflicts were not covered by current international law.
Concerning the “provisional application of treaties”, he said that the Commission should not encourage or discourage its use, nor should it consider domestic provisions of States related to that topic. There were doubts whether or not a decision to provisionally apply a treaty could be characterized as a unilateral act, taking into account that the Vienna Convention specifically considered it as a result of an agreement between States. Finally, he said he did not accept the assertion that provisional application of a treaty could not be undertaken arbitrarily.
He concluded that the Commission should “seriously reconsider” some issues that affected not only its internal functioning, on which he would not comment, but also the role that States should play in their interaction with the Commission in the framework of the Sixth Committee. The Commission should consider reducing the number of topics (but not the number of sessions), and the requests for information from States should be more selective and precise.
KOTESWARA RAO (India), on the topic “identification of customary international law”, said that, while he welcomed the Special Rapporteur’s methodology in identifying State practice, primarily the International Court of Justice’s opinions, excluding other international tribunals might sometimes be “mismatched” and was a minimalistic approach. Both State practice and opinio juris must be given equal importance in the study. The practice of States from all regions should be taken into account. In that regard, developing States, which did not publish digests of their practice, should be encouraged and assisted to submit their State practice.
Given the devastating effects of armed conflicts on the environment, he said the topic “protection of the environment in relation to armed conflicts” needed clarification and coherence. It would be relevant to see the existing international legal framework, including the areas of international humanitarian law, international human rights law, international refugee law and international environmental law, as they provided legal obligations that had a bearing on the protection of the environment in relation to armed conflict.
On the topic “the obligation to extradite or prosecute”, he noted the Commission’s decision to not adopt draft articles on the topic. However, instead of totally leaving the applicability of the principle to the suitability and convenience of States, some certainty and consistency could be brought to the application of the principle based upon established international legal practice, thereby ensuring the prosecution of serious crimes in the fight against impunity.
On the topic “protection of the atmosphere”, he said the Special Rapporteur’s proposed three guidelines needed in-depth analysis as they involved technical, scientific and legal issues. With respect to the topic as a “common concern for mankind”, the Special Rapporteur could explore more legal reasoning as the concept was highly debated and less accepted in other areas of international law. As well, there should be more focus on cooperative mechanisms to address issues of common concern.
On the topic “immunity of State officials from foreign criminal jurisdiction”, he said that although it was clear that the essence of immunity ratione materiae was the nature of the acts performed and not the status of the individual who performed them, it would be useful to identify the persons in that category of immunity, since immunity from foreign criminal jurisdiction applied to those individuals.
EDEN CHARLES (Trinidad and Tobago) addressing the draft articles on the “protection of persons in the event of disaster”, said that while they purported to be based on cooperation, they actually took a rights and duties approach. Such an approach should apply to the relationship between the affected State and its population, while the relationship between third States and affected States should be governed by a different set of rules. On customary international law, the practice of intergovernmental organizations would be relevant to some rules but not to others. The question was where to draw the line. The answer to that question should be based on an assessment of the relevant practice and doctrine, reflected in the report and commentaries. He also agreed with the Drafting Committee’s decision to exclude the idea of specifically affected States, which had no basis in law.
While he supported inclusion of “crimes against humanity” in the Commission’s current agenda, he said that all three major international crimes, including also genocide and war crimes, could benefit from such treatment. Existing cooperation mechanisms between States for the latter two needed to be strengthened. However, the project should complement the Rome Statute. Expressing support for the inclusion of jus cogens in the Commission’s long-term programme of work, he expressed the hope that it would immediately include the topic in its current programme and appoint a special rapporteur.