As Consideration of International Law Commission Report Concludes, Legal Committee Debates Constitutional Challenges Arising from Treaties’ Provisional Application

GA/L/3492
5 November 2014
Sixty-ninth session, 27th Meeting (AM)

As Consideration of International Law Commission Report Concludes, Legal Committee Debates Constitutional Challenges Arising from Treaties’ Provisional Application

Consideration of States’ constitutional challenges was crucial to the provisional application of treaties, speakers underscored today, as the Sixth Committee (Legal) concluded deliberations on a number of topics from the International Law Commission’s annual report.

Indonesia’s delegate said, given that the provisional application of treaties could lead to a conflict between international law and constitutional law of concerned parties, it was important to consider the relationship between the “provisional application of treaties” and the constitutional law requirements for the entry into force of the treaty concerned.  Any guidelines on the topic must include establishing conditions for the provisional application of treaties that would avoid the potential of conflict.

The representative of New Zealand agreed, pointing out that in addition to the issue of domestic implementation for States, the use of provisional application to circumvent domestic constitutional processes was also of concern.  The Commission must take into account the significance of domestic procedures for the acceptance of international obligations and their implementation when addressing provisional application, a view echoed by other delegations.

The draft articles on the “protection of the environment in relation to armed conflicts” were also featured prominently in the debate, with many delegations conveying their concerns with respect to definitions as well as subjects that should be included in the Committee’s work on the topic.

Iran’s representative said expanding the definition of “armed conflict” to include non-international armed conflict seemed problematic.  The Commission would have to consider the legal obligations of non-State actors, which could lead to expounding upon a definition that was already fraught with ambiguities and disagreements.

The delegate of Malaysia, noting the broad support for developing working definitions of “armed conflict” and “environment” to guide discussions, said there was currently no need to achieve a conclusive definition of those terms.  However, the principles of “sustainable development”, “principle of prevention” and “polluter pays” were relevant to the development of guidelines regarding the use of environmentally sound measures for military or defence planning.

Marie Jacobsson, Special Rapporteur on the protection of the environment in relation to armed conflicts, thanked delegations for their substantive and rich statements on the topic and assured them that comments and feedback would be considered as she prepares the second report to be presented in 2015.

Kirill Gevorgian, Chair of the International Law Commission, also thanked the Sixth Committee delegations for their statements on the report.  Stressing the importance of the Committee’s views in the Commission’s work, he reiterated a request for Governments to submit to the Secretary-General their comments on the draft articles on the protection of persons in the event of disasters in preparation for the Commission’s second reading.

Draft resolutions were then brought before the Committee, first by a representative of Pakistan who introduced a draft resolution on criminal accountability of United Nations officials and experts on missions.  A representative of the Czech Republic then introduced a text on effects of armed conflicts on treaties, followed by Brazil’s representative’s introduction of a draft resolution on responsibility of international organizations.

Also speaking today were representatives of the United States, Turkey, Jamaica, Kazakhstan, and Republic of Korea.

The Committee would next meet at 10 a.m. on Friday, 7 November, to hear the reports of several working groups and to take action on several draft resolutions.

Background

The Sixth Committee (Legal) today would conclude its consideration of the annual Report of the International Law Commission.  For background, see Press Release GA/L/3487.

The Committee would also hear introductions to three draft resolutions on: Criminal accountability of United Nations officials and experts on mission (document A/C.6/69/L.11); Effects of armed conflicts on treaties (document A/C.6/69/L.9); and Responsibility of international organizations (document A/C.6/69/L.10).

Statements

NATALIE PIERCE (New Zealand) expressed support for an approach “protection of the environment in relation to armed conflict” which did not duplicate the existing international rules on the law of armed conflict.  As well, the Special Rapporteur should consider a broad working definition of “armed conflict” to ensure that harm caused to the environment was included, irrespective of the parties to the armed conflict or where the harm was caused.  In view of further reports, she supported addressing the need to minimize environmental degradation during armed conflict and considering reparation and compensation by those responsible, for which principle 13 of the Rio Declaration could prove useful.

While the “provisional application of treaties” could be a legitimate tool, she said its use must be coupled with an appreciation of the constitutional challenges it presented for many States.  Furthermore, provisional application, if not fully implemented domestically, could give rise to an inconsistency between a State’s international obligations and its domestic law.

Noting that such domestic implementation was a major issue for States, she added that the use of provisional application to circumvent domestic constitutional processes was also of concern.  Although the Commission did not necessarily have to undertake a full study of the domestic implementation procedures for treaties accepted through provisional application, it must take into account the significance of domestic procedures for the acceptance of international obligations and their implementation when addressing provisional application.

Given the ever-evolving nature of international investment jurisprudence, she said the Commission’s work on the “Most-Favoured-Nation clause” was a timely and valuable contribution.  Its final product would provide useful practical guidelines for States in the interpretation of those clauses, assist investment tribunals and help prevent discrepancies between the decisions of various bodies on the interpretation of most-favoured-nation obligations in bilateral investment treaties.

MAHMOUD KHOUBKAR (Iran) said he supported the two-element approach to the “identification of customary international law”, which was the assessment of both opinio juris and the existence of practice.  State practice contributed primarily to the creation of customary international law; the practice of international organizations could be subsidiary in the process to the extent that it reflected the practice of States.  As pointed out by the International Court of Justice, a United Nations General Assembly resolution could, in certain circumstances, provide evidence for establishing the existence of a rule or the emergence of an opinio juris.  In that regard, it would be necessary to look at the content and the condition of the adoption of the pertinent resolution.  The conduct of non-governmental organizations and individuals could not be qualified as practice for formation or evidence of customary international law.  As for the question on the burden of proof, the State claiming or denying the rule had the burden to prove it.

On the topic “protection of the environment in relation to armed conflicts”, he said expanding the definition of armed conflict to include non-international armed conflict seemed problematic.  The Commission would have to consider the legal obligations of non-State actors, which could lead to expounding upon a definition that was already fraught with ambiguities and disagreements.  It would also entail further attempts to determine the threshold of non-international armed conflicts.  Both would require the modification of relevant provisions of international law of armed conflict far from the purpose of the work at hand.  He reiterated the relevance of refugee matters to the topic, noting that provision of settlement in case of a refugee surge called into question the protection of the environment.

STEPHEN TOWNLEY (United States), on the topic of “identification of customary international law”, welcomed the “two-element approach”, underscoring the importance of identifying actual practice (as distinct from statements about practice) and the application of that approach across all fields.  He suggested changes in wording to several draft articles to clarify the centrality of State practice in the formation of customary international law, and to emphasize limitations on the contributions of other actors such as international organizations.  The conclusion on what acts might constitute State practice could be strengthened by clarifying that whether the acts contributed to forming customary international law would depend on the rule at issue and the context.

Agreeing that the “provisional application of treaties” created a legal relationship and, thus, had legal effects that went beyond the obligation not to defeat the object and purpose of a treaty, he said that whatever the final form of the Commission’s work on the topic, it should be consistent with article 25 of the Vienna Convention on the Law of Treaties.  However, he disagreed that the unilateral acts of States had relevance to the subject and expressed doubt that the intention to apply a treaty provisionally might be communicated tacitly.

On the “protection of the environment in relation to armed conflicts” he said that rather than try to determine “principles and concepts” of international law that might continue to apply during armed conflict, it might be of greater use to assess the provisions within the law of armed conflict that related to protection of the environment.  Welcoming the Special Rapporteur’s recognition that it was “`not the task of the Commission to modify […] existing legal regimes’”, he stressed that principle was important to further work on the topic.

Turning to the “Most-Favoured-Nation clause”, he supported the decision to summarize its study and description of current jurisprudence in a final report, noting that as such clauses were specific to the treaties in which they were found, they resisted a uniform approach.  The research would be a useful resource for Governments and practitioners with an interest in the area.

TANSU SECKIN (Turkey), commenting on the “provisional application of treaties”, said that the Commission’s study should not be aimed at persuading States to utilize the mechanism of provisional application, but should provide a practical guide on its various aspects.  Furthermore, a comparative study on domestic provisions relating to provisional application was necessary.  Such application involved a treaty-based relationship and was only possible on the basis of an agreement between States and as an exercise of their free will.  Therefore, a decision to provisionally apply a treaty could not be characterized as a unilateral act.  The Special Rapporteur’s consideration of different consequences arising from the provisional application of bilateral as opposed to multilateral treaties was welcomed.

Concerning the “protection of persons in the event of disasters”, she highlighted the delicate balance between the sovereignty of an affected State and the need to assist affected populations following a disaster, including through seeking and providing external assistance.  “Close cooperation and solidarity of the international community is paramount for efficient disaster relief,” she said, underscoring that legal guidance would be useful and calling for a careful examination of the draft articles.

COURTENAY RATTRAY (Jamaica), noting the Commission’s tendency to not identify rules and approaches that might represent progressive development as distinct from codification, encouraged that body and its Special Rapporteurs to do so in cases where it was appropriate; it would help States to form a clearer picture of the balance between lex ferenda and lex lata in any particular scheme of rules recommended by the Commission.  The Commission, in preparing its future work, could also consider introducing additional topics that fell within the spheres of international investment law, international human rights law and laws relating to economic development.

He said the draft articles on “expulsion of aliens” offered a thoughtful reconciliation of divergent policy perspectives on the topic, balancing in significant measure the rights of aliens and the sovereign prerogatives of the State.  In addition, the texts offered sound provisions in respect of the human rights of aliens.  While the draft articles could form the basis of a draft convention, he questioned certain provisions, including an individual’s degree of vulnerability to expulsion in relation to their links to a State.

While the draft articles on the “protection of persons in the event of disasters” showed considerable sensitivity towards individuals in need of aid and assistance in the face of disasters, he expressed reservations about the actual import of some of the provisions.  The draft articles implied or asserted that not only should States cooperate, but that they must cooperate.  That approach could be viewed as progressive development in the law which could compromise the sovereign will of States.  Also of concern, among other provisions, was draft article 12, which placed each affected State under a duty not only to ensure the protection of persons, but also to ensure “provision of disaster relief and assistance on its territory”.  The legal mandated duty meant that if the affected State failed to ensure such provisions, it was in breach of international law and liable for damages; that could be an unintended consequence of a draft that sought to promote help for countries in the midst of calamity.

Turning to the “identification of customary international law”, he said the two-stage approach — identifying the general practice and, as a separate step, assessing whether the practice was accepted as law — was an appropriate way of addressing the matter.  He noted, among other observations, that draft conclusion 7, which offered an indicative list of manifestations of practice, could include pleadings by States before international, regional or national tribunals.  While pleadings were, in some respects, specific to cases, they often incorporated State perspectives on given questions, and were manifestations of practice.  Commenting on other draft conclusions, he asked the Commission to elaborate on various aspects to which further consideration could be given.

WAN MOHD ASNUR WAN JANTAN (Malaysia) addressing “identification of customary international law” draft conclusions 2 and 7(4) on the practice of international organizations, said that such practice should only apply to member States of such organizations; it should not be presumed that those actions represented the overall practice of States.  The Commission should give priority to widespread and consistent State practice throughout its work.  Furthermore, a distinction should be made between the actions of States acting as a result of comity and courtesy, which did not imply a sense of legal obligation, and those acting based on opino juris, which did.  The Asian-African Legal Consultative Organization had also proposed to study the topic in support of the Commission’s work.

Turning to “protection of the environment in relation to armed conflicts”, he said the work should focus on identifying the legal issues on environmental protection arising at each phase of armed conflict.  Such efforts should aim towards the development of future guidelines or conclusions, rather than to modify existing legal rules and regimes under international humanitarian law, human rights law or international criminal law.  Noting the broad support for developing working definitions of “armed conflict” and “environment” to guide discussions, he said there was no need at present to achieve a conclusive definition of those terms.  The principles of “sustainable development”, “principle of prevention” and “polluter pays” were relevant to the development of guidelines regarding the use of environmentally sound measures for military or defence planning.

On the “provisional application of treaties”, he said that it was crucial to discern such application from the source of obligations as provided by the treaty itself.  Otherwise, if recourse to alternative sources was needed, the analysis of legal effect should be guided and determined by the result of an unequivocal indication of consent by the State that it accepted the provisional application of the treaty.  Thus, the topic should be further elaborated with regard to States’ sensitivities, as well as the peculiarities and contextual differences embedded in the treaty provisions, and how State practices so far had responded to such variations.

He went on to say that the “Most-Favoured-Nation clause” should be interpreted with the Vienna Convention as a point of departure.  Underscoring that it was vital to examine and analyse such clauses in the proper context and with regard to the negotiating background within which a particular international investment agreement had been entered into, he said that the interpretation resulting from such exercise would apply only to the agreements themselves and not to investor State dispute settlements.

Turning to the inclusion of “crimes against humanity” in the Commission’s long-term programme of work, he noted that the proposed convention on the topic should take into account the differences in States’ legislation and practice in order to promote inter-State cooperation on the matter.  The time was not yet ripe to consider elaboration of a new international instrument on crimes against humanity.

ARMAN ISSETOV (Kazakhstan), addressing the “provisional application of treaties”, said he agreed that the legal consequences of treaties applied provisionally were equal to those once it had entered into force, as well as to the sources establishing provisional application.  However, further study was needed on unilateral acts in that regard.  In addition, the termination of the provisional application of a treaty, for any reason other than the intention not to become party to it, contradicted article 25 of the Vienna Convention.  Alleging the contrary could affect the stability of the provisional application of treaties and would be contrary to the meaning of that institution.  However, a State expressing the intention not to become party to a treaty and thus, terminating its provisional application, should be able to subsequently decide to become a party if it could overcome the reasons that had originally led it to terminate the provisional application.

RESHANTY BOWOLEKSONO (Indonesia) said the work of codification and clarification of issues concerning the “obligation to extradite or prosecute” was of great importance to prevent impunity.  The Commission’s final report would provide valuable guidance for States on the topic.

While the topic “protection of the atmosphere” was controversial, she noted, the Commission’s study of it was important.  It would not only enhance the Committee’s understanding of the nature of the atmosphere as a limited resource, but also enable the international community to prevent environmental degradation occurring in the atmosphere.  The difficulties related to considering the topic should not prevent the Commission from preparing draft guidelines on the obligations of States to prevent and protect the atmosphere from human activities conducted by States, and by “natural and juridical persons that had the effect of introducing deleterious substances or energy into the atmosphere”.  Citing several draft guidelines, she said further revision must be made to clarify various aspects of the topic.

On “immunity of State officials from foreign criminal jurisdiction”, she said that the Special Rapporteur’s extensive research on practice of national and international judicial institutions, treaty practice and the Commission’s other work would be beneficial in future discussions on the topic.  Expressing support for the inclusion of a definition of a “State official” as provided in draft article 2(e), she said such definition was essential for identifying the individual who was entitled to immunity from criminal jurisdiction, either immunity ratione personae or ratione materiae.  She also expressed support for draft article 5, the text of which could be seen as mutatis mutandis application of the provision of draft article 3.

Turning to “identification of customary international law”, she said a working definition of customary international law was necessary, and welcomed the formulation of the definition that reflected in essence the language of article 38 paragraph 1(b) of the Statute of the International Court of Justice.  It would be best to postpone consideration of the definition of “international organization” until the Commission specifically dealt with the use of terms in a comprehensive manner.  Commenting on other draft conclusions, she asked the Commission to clarify certain aspects where necessary and to elaborate on various items to which further consideration should be given.

In regard to the “protection of the environment in relation to armed conflicts”, she welcomed the Special Rapporteur’s temporal approach to the topic, while pointing out that Phase II (during an armed conflict) should be the primary focus.  Also, even though there were legal instruments that had been adopted by the United Nations Educational, Scientific and Cultural Organization (UNESCO), the study should also include protection of cultural heritage.  The Commission could examine whether there were gaps found in the existing legal instruments, with the aim of filling such gaps.  In relation to the scope of the topic, the Commission should address situations of non-international armed conflicts equally as international armed conflicts.

She said it would be essential to consider the relationship between the “provisional application of treaties” and the constitutional law requirements for the entry into force of the treaty concerned, as the provisional application of treaties could lead to a conflict between international law and constitutional law of the parties concerned.  Any guidelines on the topic must include establishing conditions for the provisional application of treaties that would avoid the potential of conflict.

YONGHOON CHOI (Republic of Korea) said that “identification of customary international law” could provide practical guidance to judges of domestic courts, unfamiliar with international law, but who had to decide on customary international law.  Voicing support for the constituent elements approach to the topic, he said that a thorough study of inaction as a form of State practice was needed, with the result to be detailed in the commentary to draft article 6.  In addition, the concept of “specifically affected States” should be considered in certain rules of customary international law, particularly in identifying regional customs.  Concerning future work on the topic, he stressed the interplay and temporality of the relationship between the two elements and also the question of “burden of proof” regarding the existence of customary international law.

Turning to the “protection of the environment in relation to armed conflicts”, he pointed out that it might be difficult to precisely define the exact temporal distinction between stages of armed conflict in reality.  In addition, noting that the term “environment” must be defined within a context, he urged constructive discussion within the Commission to that end.  The Commission should consider preventive measures and international cooperation in its deliberations.

On the “provisional application of treaties” he agreed that such application would produce legal effects.  However, those effects should be distinguished from the legal effects upon entry into force.  Further, although the Special Rapporteur’s position was that comparative studies of domestic law on the topic were unnecessary, he believed a systematic evaluation of domestic law and the related articles from the Vienna Convention was needed, as a treaty could only be applied provisionally based on internal law.  He also expressed the hope that the outcome of consideration of the “Most-Favoured-Nation clause” would be useful to those involved in international investments, and policymakers.

Introduction of Draft Resolutions

The representative of Pakistan introduced the draft resolution on “Criminal accountability of United Nations officials and experts on missions”.  The text would request the General Assembly to strongly urge States to take all appropriate measures to ensure that crimes by United Nations officials and experts on missions did not go unpunished, and that perpetrators of such crimes were brought to justice, without prejudice to the privileges and immunities of such persons and the United Nations under international law, and in accordance with international human rights standards, including due process.

Further by the text, the Assembly would request the Secretary-General to bring credible allegations that revealed that a crime might have been committed by United Nations officials or experts on mission to the attention of the States against whose nationals such allegations had been made.  It would also request from those States an indication of the status of their efforts to investigate and, as appropriate, prosecute crimes of a serious nature, as well as the types of appropriate assistance that States might wish to receive from the Secretariat for the purposes of such investigations and prosecutions.

The draft resolution also provides, among other things, for the Assembly to urge Governments to continue taking the measures necessary for the implementation of various resolutions referred to in the draft, including their provisions addressing the establishment of jurisdiction over crimes, particularly those of a serious nature, as known in their existing national criminal laws, committed by their nationals while serving as United Nations officials or experts on mission.

The Czech Republic’s representative then introduced the draft resolution on “Effects of armed conflicts on treaties”, by which the General Assembly would request the Secretary-General to invite Governments to submit written comments on any future action regarding the draft articles on the topic.  Further by the text, the Assembly would include the agenda item in the provisional agenda of its seventy-second session with a view to what form might be given to the articles.

Brazil’s representative, introducing the draft resolution on “Responsibility of international organizations”, said the text would have the General Assembly request the Secretary-General to prepare an initial compilation of decisions of international courts, tribunals and other bodies referring to the articles.  Governments and international organizations would be invited to submit information on their practice in that regard, as well as written comments on any future action regarding the draft articles on the topic, and also to submit that material well in advance of the Assembly’s seventy-second session.  Further by the text, the Assembly would include in the provisional agenda of its seventy-second session the agenda item with a view to what form might be given to the articles.

For information media. Not an official record.