Sixth Committee Takes Up Third Cluster of Topics from International Law Commission Report, Seeking Clarity, Balance in Addressing Complex Global Issues
Continuing their debate on the third cluster of topics from the report of the International Law Commission, Sixth Committee (Legal) delegates today sought clarity and balance on a broad array of elements covered by the three diverse subjects under discussion.
As deliberations continued on “Protection of the environment in relation to armed conflicts”; “Immunity of State officials from foreign jurisdiction”; and the “Provisional application of treaties”, speakers presented a range of views on each of those topics as they worked towards consensus and sought ways to jointly address those global issues.
The representative of Lebanon welcomed discussions on the “Protection of the environment in relation to armed conflict”, particularly in light of the recent adoption of the 2030 Agenda for Sustainable Development. The aim was to clarify a panoply of rules and principles contained in the law of armed conflict, whose provisions for protection of the environment were few and inadequate, and in international environmental law, which did not clarify whether its rules were applicable during armed conflict. Therefore, the goal must be to determine the applicability of rules during times of armed conflict.
In that light, Austria’s representative said that what was needed were explanations concerning the relationship between environmental law and humanitarian law. The objective of the draft principles being elaborated was the protection of the environment, not their field of application. The lack of a clear definition of the environment continued to make it difficult to assess the scope of the principles drafted so far.
El Salvador’s representative said that provisions on the protection of civilians or civilian assets should not be transferred to those with respect to the protection of the environment. It would not be appropriate to define the environment as civilian in nature since it was transnational and universal.
On the other hand, the representative of Belarus welcomed the Commission’s definition of the environment as being civilian in nature. Nonetheless, he did not agree that environmental law should have lex specialis status in discussions of the topic or that other areas of law, such as human rights law, should be considered in that context. Instead, working on delimiting environmental zones for protection could make a tangible contribution to the progressive development of international law.
Speaking on the “Immunity of State Officials from foreign jurisdiction”, he also said that elucidating the legal substance of acts performed in an official capacity could be one of the main contributions to that area of international law. Noting the close relationship between an official’s individual responsibility and that of the State, he said that, by using State officials for illicit conduct, States assumed responsibility for such actions.
At the same time, the representative of the Netherlands said that a balance must be struck between the weight attached to the nature of the act and to the person accomplishing the act. The presumption must be that a person acting in official capacity should enjoy immunity, even if the act itself was not immediately recognizable as an official act. The scope of “acting in official capacity” was broader than the “official act” and it was the broader scope that must be covered by immunity ratione materiae.
Portugal’s representative said that the topic “Provisional application of treaties” was of important practical value for legal advisors around the world. It was also one of considerable political interest, given the importance of the Vienna Convention and the increasing need for rapid responses to events. The Commission should aim to clarify the legal regime of provisional application contained in the Vienna Conventions, with the objective remaining the development of a set of draft guidelines, possibly containing model clauses.
Adding to that discussion, the representative of the Czech Republic noted the presence of “a large spectrum of problems” regarding the provisional application of treaties. For the topic to be considered successfully, it was important to focus on those aspects that were common for most treaties, while maintaining focus on its international dimension of provisional application.
On other matters today, the Sixth Committee decided to defer a decision on the requests for observer status in the General Assembly for the Community of Democracies and for the International Conference of Asian Political Parties to its seventy-first session.
Also speaking today were representatives of Greece, Cuba, United Kingdom, Slovenia, Romania, Australia, Germany, Croatia and Chile.
The Sixth Committee would next meet Wednesday, 11 November, at 10 a.m., to continue and conclude debate on the report of the International Law Commission.
Background
The Sixth Committee (Legal) today continued its deliberations on the third cluster of topics of the report of the International Law Commission. It also resumed consideration of requests for observer status in the General Assembly for the Community of Democracies and for the Conference of Asian Political Parties. For background on the Commission’s report, please see Press Release GA/L/3506. For background on requests for observer status, please see GA/L/3501.
Statements on Third Cluster
MARIA TELALIAN (Greece), on the topic “Protection of the environment in relation to armed conflicts”, said it was “high time” to reflect on the applicability of the principles of international environmental law during armed conflict. In particular, a focus was welcomed on how those principles operated in wartime, as well as how they interacted with the principles of international humanitarian law referred to in draft principle II-2. She also suggested that a separate provision with definitions of various terms be considered. That had been the case with article 2 of the Commission’s 2001 draft articles on the prevention of transboundary harm from hazardous activities. The commentary should explore, in an indicative manner, some strictly regulated methods of warfare more likely than others to adversely affect the environment.
On the topic “Immunity of States from foreign criminal jurisdiction”, she expressed agreement with various points made by the Special Rapporteur and the drafting committee. She pointed out, however, that, from a conceptual point of view, the effects of crimes under international law in respect of immunity ratione materiae should be better explored in the context of possible exceptions to humanity, rather than in the context of the definition of acts performed in an official capacity. Conversely, any definition of such acts adopted by the Commission should not prejudge the future consideration of the matter.
Turning to the topic “Provisional application of treaties”, she said the 1969 Vienna Convention should be the point of departure for the Commission’s work. With respect to draft guideline 1, the phrase “by States and international organizations” could be added at a later date to emphasize that the scope was broad enough to take into account the significant amount of practice developed by international organizations. With respect to draft guideline 3, a more thorough analysis of the cases in which States other than negotiating States had provisionally applied a treaty would be welcomed. On the Commission’s future work, the Special Rapporteur should focus on the legal regime and the modalities for termination and suspension of the provisional application, including on the relevance of article 60 of the 1969 Vienna Convention, dealing with termination or suspension of the operation of a treaty as a consequence of its breach.
JOSÉ MARIA VIVES PÉREZ (Cuba), while commending the “laudable labour” of the International Law Commission members in the progressive development and codification of international law, noted with concern that work undertaken by the Commission had not been duly reflected in the Sixth Committee.
Turning to the topic “Protection of the environment in relation to armed conflicts”, he underscored that all needed to address the matter, both from a practical and a legal point of view. Armed conflict caused much damage and harm that was often irreversible. Setting clear principles for the protection of the environment before, during and after armed conflict had high preventive value. Cuban law provided that the environment must be considered in the country’s defence preparations when necessary. State and economic bodies and social institutions prepared and implemented measures which reconciled defence needs with economic development and protection of the environment.
On the topic “Immunity of State officials from foreign criminal jurisdiction”, he said there was a clear difference between the application of immunity of officials and impunity. Article 31.4 of the Vienna Convention on the Law of Treaties had established an excellent balance on that point. The Commission must avoid including exceptions to immunity that had not been reflected in international law. It must consider exceptions provided by the internal legislation of a respective State. In no way should the principle of universal jurisdiction or the obligation to extradite or prosecute be applied to officials who enjoyed immunity. Cuban legislation clearly established the application of national jurisdiction to officials who enjoyed immunity when they committed crimes abroad.
On the topic “Provisional application of treaties”, he said the decision to provisionally apply a treaty was legally based on the strict observance and application of articles 24 and 25 of the Vienna Convention, as well as on application of the principle of autonomy of parties. In addition, it was important to take a cautious approach in the interpretation of the sovereign acts of States in signing international agreements and their entry into force. It was the parties, through the manifestation of consent, which assumed the rights and obligations in an agreement. Those obligations were associated with complex sociopolitical and economic contexts.
ILYA ADAMOV (Belarus) stated that he could not agree that environmental law should have lex specialis status in discussions of “Protection of the environment in relation to armed conflict”. Furthermore, other areas of law, such as human rights law, should not be considered in that context, either. The Commission’s definition of the environment as being civilian in nature was welcomed, he said, adding that that draft principle 2 should be brought into line with the laws of armed conflict. He suggested that working on delimiting environmental zones for protection could make a tangible contribution to the progressive development of international law.
On “Immunity of State officials from foreign criminal jurisdiction”, he said that elucidating the legal substance of acts performed in an official capacity could be one of the main contributions to the codification and progressive development of international law in the area. Noting the close relationship between an official’s individual responsibility and that of the State, he said that, by using State officials for illicit conduct, States assumed responsibility for such actions. Regarding draft article 6 on the temporal application of ratione materiae, further consideration of the matter was welcomed, particularly as it related to ratione personae.
Turning to “Provisional application of treaties”, he said he agreed that the final aim was to come up with model wording on such application. It was important to take into account the practice of States. The provisional application of international treaties should be applicable as soon as the treaty came into force. As well, termination of provisional application was permissible under the law of international treaties. Additional study was needed on the situation when provisional application was not in conflict with national law. Also to be considered were the consequences of multilateral treaties which contained measures on provisional application before the treaty had entered into force.
SHERIN SHEFIK (United Kingdom), on “Protection of the environment in relation to armed conflicts”, underscored that the topic should not broaden in scope to examine how other legal fields, such as human rights, interrelated. While guidelines or principles could be useful, she said she was not convinced of the need for new treaty provisions in the area. She also pointed out that the provisionally adopted draft principles should more accurately align with the existing law of armed conflict. Certain subject matter should be excluded from the scope of the topic, including the exploitation of natural resources, the protection of cultural heritage and areas of cultural importance, and the effect of particular weapons. Internal disturbances and tensions, such as riots and law enforcement activity, should also be excluded.
Turning to the topic of “Immunity of State officials from foreign criminal jurisdiction”, she said the appropriate outcome of the Commission’s work was a treaty, to the extent that it contained proposals for the progressive development of law in the area. On the question of exceptions, she recalled the well-known decisions of her country’s House of Lords in the Pinochet case, which had found that the United Nations Convention against Torture constituted a lex specialis or exception to the usual rule of immunity ratione materiae of a former Head of State because torture, under the Convention’s definition, could only be committed by persons acting in an official capacity. In respect of immunity ratione personae, she underscored that the current state of international law allowed for no exceptions from immunity other than by way of waiver.
On the “Provisional application of treaties”, she said guidelines with commentaries could assist decision-makers at various stages of the treaty process, taking into account State practice. The issue of legal effects of provisional application was the key provision of the draft guidelines. She encouraged elaboration of the meaning of “legal effects”. She expressed agreement with the deletion of the expression “provided that the internal law of the States or the rules of international organizations do not prohibit such provisional application” from the text of draft guideline 3 provisionally adopted by the Drafting Committee. It was important to conform to article 46 of the Vienna Convention and to avoid any suggestion that the terms of internal law could be relied upon to avoid an international obligation.
MARCELLINUS VAN DEN BOGAARD (Netherlands), addressing “Protection of the environment in relation to armed conflict”, welcomed the use of the term “draft principles” rather than “draft articles”, as it adequately reflected the intention not to develop a new convention. Noting that the draft principles adopted so far did not include a definition of “armed conflict”, he said that such a definition was not needed. Concerning draft principle II-3, he expressed doubts on use of the term “rules on military necessity”; its scope was unclear, in addition to which it was also unclear how environmental considerations might be applied in determining such a necessity. Among his many observations, he also suggested that draft principle II-5 lowered the protection afforded to the natural environment by draft principle II-1(3) by requiring that the area be “of major environmental and cultural importance”.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he questioned the methodological position on domestic legislation on the scope of an act performed in official capacity, noting that an overview of national legislation, in addition to court decisions, might have allowed for firmer conclusions. He also sought more in-depth analysis with respect to the relation between the law of State responsibility and the law of immunities, including in instances of conduct ultra vires. In that regard, a balance must be struck between the weight attached to the nature of the act and to the person accomplishing the act. The presumption must be that a person acting in official capacity should enjoy immunity, even if the act itself was not immediately recognizable as an official act. The scope of “acting in official capacity” was broader than the “official act” and it was the broader scope that must be covered by immunity ratione materiae.
On the “Provisional application of treaties”, he said the analysis of the relationship between the provisional application of treaties and other provisions of the 1969 Vienna Convention was useful for clarification and delimitation. The provisional application must be distinguished from the obligation not to defeat the object and purpose of that treaty. He questioned the notion that the provisional application of a treaty presumed that the treaty was not in force. There could be no doubt, in accordance with the Vienna Convention, that provisional application of a treaty had legal effects, such that any ensuing obligations must be observed. Differing with guideline 5, he emphasized that such obligations should not end with the termination of provisional application of a treaty. Furthermore, he said the reference in draft guideline 1 to the internal law of States or the rules of international organizations was not appropriate. Provisional application should be approached as an instrument under international law.
ANDREJ LOGAR (Slovenia), on the topic “Protection of the environment in relation to armed conflicts”, said, among other things, that it was necessary to examine the adequacy of international environmental law rules in the context of armed conflict. Current work should cover both international and non-international armed conflicts and consider the differences between the two. With respect to the first temporal phase, which concerned the period before an armed conflict, he welcomed the inclusion of other preventative aspects in the draft principles, including the importance of national legislation on the protection of the environment, the training of armed forces and the dissemination of instructive materials. On draft principle 1, he said the description of the environment as being “civilian in nature” needed further clarification to avoid any ambiguity. Concerning draft principle 2, he agreed with the call for a cautious approach to transposing to the protection of the environment the provisions of the law of armed conflict on the protection of civilians or civilian objects.
Turning to the topic “Immunity of State officials from foreign criminal jurisdiction”, he said language regarding draft article 2(f) needed redrafting in order to avoid the implication that any act performed in an official capacity was considered a crime. A restrictive approach was also needed with respect to extending immunities to a broader category of persons. Noting that the topic’s most challenging aspects were the limits and exceptions to immunity, he reiterated that, while the immunity of State officials from foreign criminal jurisdiction was based on the principle of sovereign equality of States, among others, the topic should also be addressed against the background of the growing prominence of legal humanism and the fight against impunity, in particular through the progressive development of international law and developments in international criminal law.
On the topic “Provisional application of treaties”, he said he agreed that there was need to further analyse the relationship between article 25 of the Vienna Convention and its other provisions. In that regard, it could be useful to consider the applicability of that Convention’s regime for unilateral termination. With regard to the termination of provisional application, article 18 would require further analysis to the extent that it related to the same period before the entry into force of a treaty, but differentiated between two manners of termination, depending on whether consent to be bound had been expressed or not. That and other comparisons with other relevant Vienna Convention provisions could also clarify the interpretation of article 25, as well as provide guidance as to whether and to what extent article 25 was lex specialis.
PETRA BENEŠOVÁ (Czech Republic), on “Protection of the environment in relation to armed conflicts”, said that, under her country’s Constitution, the armed forces were obliged to respect the law of armed conflicts and international humanitarian law. Moreover, provisions regarding the protection of the environment during armed conflicts were contained in the regulations of the Czech armed forces. She said there was a lack of clarity about the overall orientation and goal of the Commission’s work on the matter and, therefore, the Commission, before going forward with draft principles, should explore the current need of the international community on the issue and determine what an adequate means to respond to that need should be.
With regard to “Immunity of State officials from foreign criminal jurisdiction”, she said she agreed with the principles expressed in draft article 6 defining the scope of immunity ratione materiae and with the premises that formed the basis and context of immunity ratione materiae; a clear distinction had to be made between “acts performed in an official capacity” and “acts performed in a private capacity”, on the one hand, and acta iure imperii and acta iure gestionis on the other. With regard to draft article 2(f), which contained a definition of an act performed in an official capacity, more consideration was needed as to whether such a definition was needed at all. The phrase had not been defined in other instruments, yet its legal meaning was clear and its application seemed to pose no problems.
On the “Provisional application of treaties”, she noted that three reports from the Special Rapporteur had touched upon “a large spectrum of problems”. For the topic to be considered successfully, it was important to focus on those aspects that were common for most treaties. A focus should also be kept on the international dimension of provisional application. It was the responsibility of States to satisfy domestic law requirements before agreeing or not agreeing to consent to provisional application. To give relevance, at the international level, to provisions of domestic law concerning the provisional application of treaties would represent “a significant departure” from the Vienna Convention.
CORINA-MONICA BADEA (Romania), on the topic “Protection of the atmosphere”, welcomed the clear definition of the term “atmosphere” and the State’s obligation to cooperate for the protection of atmosphere and further enhance scientific knowledge on the causes and impacts of pollution and degradation.
In relation to the topic “Immunity of State officials”, she noted the difficulty of finding the right balance between fighting impunity and ensuring stability in inter-State relations. Thus, the approach of the Special Rapporteur, which intended to treat the “nature of the crime” and the “particular gravity” in relation to exceptions, was welcomed. Further attention should be given to establish whether exceptions existed, as State practices might not be uniform. She also welcomed the elimination of the reference to the criminal nature of the act from the definition of “act performed in an official capacity”. However, it was important to avoid any interpretation that might lead to the conclusion that any act performed in an official capacity constituted a crime.
On the “Provisional application of treaties”, she said the application was viewed as an exceptional, and, therefore, limited, treaty action, for reasons attached primarily to legal certainty. In that respect, a comparative study of various domestic provisions could contribute to understanding State practice in the field. She underscored the relevance of the will of the parties in the case of provisional application and called for further investigation on whether States’ agreements to the provisional application of treaties might be legally binding.
Furthermore, she said that deeper examination was needed on whether the provisional application extended to the whole treaty or only to selected provisions, and whether the legal effects of such application could continue after its termination. She also voiced support for addressing the issue of the so-called headquarters agreements, as well as other forms of agreements, such as an exchange of letters or diplomatic notes.
YOUSSEF HITTI (Lebanon), speaking on “Protection of the environment in relation to armed conflicts”, said that Israel’s bombardment of the central power station in Jiyeh in 2006 had resulted in the spill of 10,000 to 15,000 tonnes of petrol along the Lebanese coast and in the Mediterranean basin. That, in turn, had impacted the social and economic development of Lebanon, as well as public health and access to natural resources, potable water and healthy food. Thus, he welcomed the topic, particularly in light of the recent adoption of the 2030 Agenda for Sustainable Development.
The aim, he continued, was to clarify a panoply of rules and principles contained in the law of armed conflict, whose provisions for protection of the environment were few and inadequate, and in international environmental law, which did not clarify whether its rules were applicable during armed conflict. Therefore, the goal must be to determine the applicability of rules during times of armed conflict. He supported the temporal approach adopted and stressed that the draft principles should apply to both international and non-international armed conflicts. The reference in the introduction to the draft texts on rehabilitation was vital. On protected zones, he said greater clarity was needed on what was meant by “areas of major environmental and cultural importance”.
JULIA O’BRIEN (Australia), on the topic “Provisional application of treaties”, said there was a distinction between a treaty that was applied provisionally and one that was in force. Further consideration was needed, considering that the legal effects of provisional application might differ from those of a treaty that was in force. It would be helpful to identify the types of treaties and provisions of treaties that were often the subject of provisional application, as well as the motivations behind such application.
Welcoming the Special Rapporteur’s consideration of the intersection between article 25 of the Vienna Convention and other relevant provisions, she said it was important to read those provisions alongside one another. The Commission’s decision to remove the reference to internal laws from draft guideline 1 to avoid creating the impression that States could escape an obligation to provisionally apply a treaty was welcomed.
The Commission’s primary focus should not be on States’ internal laws, but rather on States’ obligations on the international plane, she stressed. Complex distinctions between different domestic legal systems, however, should not distract from the central enquiry into States’ international legal obligations. In relation to bilateral treaties, the procedural aspects and subsequent consequences of a provisional application could be shaped by agreement of the parties to the treaty being provisionally applied.
KAI HENNIG (Germany), speaking on the topic “Immunity of State officials from foreign criminal jurisdiction”, welcomed the fact that the Commission had refrained from mentioning a link with crime in the text of draft article 2(f). Also appreciated was its decision to clarify in the commentary that the criminal nature of an act did not, in itself, disqualify that act from being an official act.
He went on to express regret at the absence of commentaries on the new draft articles. Addressing possible exemptions to immunity, he said that the case law of international courts, in particular of the International Court of Justice, provided ample evidence of the scope of immunity in international law, including any possible exemptions. He also advised against developing law on the issue without regard to State practice and opinio juris.
AUGUST REINISCH (Austria), addressing the topic “Protection of the environment in relation to armed conflicts”, reiterated his position in favour of using already agreed-upon definitions in international humanitarian law. What was needed were explanations concerning the relationship between environmental law and humanitarian law. In that regard, the introductory provision stating that the draft principles apply to the protection of the environment before, during or after an armed conflict was far too broad, as it seemed to address environmental law in its entirety.
Furthermore, he said, the protection of the environment was the objective of the principles, not their field of application. In light of their major detrimental effects on the environment, the draft principles should also apply to nuclear weapons and other weapons of mass destruction. Referring to the designation of protected zones in a general manner raised problems since it would require defining their relationship with the variety of already existing protected zones. In addition, the lack of a clear definition of the environment continued to make it difficult to assess the scope of the principles drafted so far.
Turning to the topic of “Immunity of state officials from foreign criminal jurisdiction”, he said the definition of an “act performed in an official capacity” as an act which, “by its nature, constitutes a crime”, was open to a misunderstanding; it could imply that all such acts were necessarily crimes. The issue of criminal jurisdiction needed to be addressed irrespective of whether the acts concerned were attributable to the State or performed in the exercise of State authority, a distinction that could differ from State to State. A broad approach to “official acts” would, however, require a thorough discussion of the exceptions from the immunity for such acts.
With regard to the third topic, “Provisional application of treaties”, he called for the draft guideline 1 to be reformulated in terms insisting that the possibility of provisional application depended on the provisions of internal law. That did not mean that a State could avoid its obligations once it had committed itself internationally to the provisional application of a treaty, but, rather, that internal law would determine whether or not such a commitment could be made.
RITA FADEN (Portugal) said that protection of the environment in relation to armed conflicts was particularly relevant in a world where more and more armed conflicts affected the environment. The existing treaty rules of international humanitarian law that addressed the protection of the environment during armed conflict were limited, especially in what concerned non-international armed conflicts. Rules 43, 44 and 45 of Customary International Humanitarian Law reaffirmed the application of the general principles on the conduct of hostilities to the natural environment. They also stressed that the use of methods or means of warfare that were intended or expected to cause widespread, long-term and severe damage to the natural environment was prohibited, and the destruction of the natural environment may not be used as a weapon.
She said the provisional application of treaties was of important practical value for legal advisors around the world, and also one of considerable political interest, given the importance of the Vienna Convention and the increasing need for rapid responses to certain events or situations that were not fully compatible with the sometimes slow process of entry into force of international treaties. The Commission should aim to clarify the legal regime of provisional application contained in the Vienna Conventions and the objective should remain the development of a set of draft guidelines, possible with model clauses.
SEBASTIAN ROGAČ (Croatia) said that, with regard to the “Protection of the environment in relation to armed conflicts”, he supported the efforts aimed at clarifying and further elaborating the scope and content of the rules and principles of international environmental law applicable in armed conflicts. Those efforts would be without any modification of the law of armed conflicts or its rules, and, in particular, rules on specific weapons. The use of terms, and, in particular, the terms “environment” and “armed conflict”, as clearly defined in the codified international humanitarian law, should be retained and fully applied in the current context. A clear distinction should be made between the protection of the environment and the protection of cultural heritage.
On “Immunities of State officials from foreign criminal jurisdiction”, he endorsed the approach followed by the Special Rapporteur, including the intention to clearly define “an act performed in an official capacity”. The deletion of the initially proposed link between “an act performed in an official capacity” and crime was welcomed. That would avoid any possible misunderstanding or erroneous interpretation of the nature of an official act or the understanding of an official act per se as a crime. He also expressed strong support for a restrictive approach to the use of immunity from criminal jurisdiction, according to which such immunity was necessarily constrained by a number of limitations or exceptions, in particular as it regarded core international crimes.
Turning to the “Provisional application of treaties”, he said he agreed that the rights and obligations of States which had decided to provisionally apply a treaty were the same as if the treaty had entered into force. A breach of the obligations assumed under the provisional application of a treaty was an internationally wrongful act which gave rise to the international responsibility of the State. The legal effects of the provisionally applied treaties were enforceable and could not subsequently be called into question in view of the “provisional” nature of the treaty’s application. Equally so, the legal effects of provisional application encompassed not only the obligation to refrain from defeating the object and purpose of the treaty, but also encompassed very important obligations arising from the rule that “agreements must be kept” and the obligation to fulfil the treaty in good faith.
RUBÉN IGNACIO ZAMORA RIVAS (El Salvador), on the topic “Protection of the environment in relation to armed conflicts”, said temporal focus on the three phases of armed conflict would facilitate the Commission’s work. Also needed was a general approach that dealt with both international and non-international armed conflicts, given that both could bring about the same irreversible consequences on the environment. Provisions on the protection of civilians or civilian assets should not be transferred to the provisions on the protection of the environment. It would not be appropriate to define the environment as civilian in nature since it was transnational and universal.
He also said that, on draft principle II-1, paragraph 3 was inadequate and problematic, as it indicated that no part of the environment could be attacked unless it had become a military target. It was important to avoid establishing a general principle that could justify any destruction of the environment for reasons of military objectives without establishing due exceptions. With respect to draft principle II-5, he said protected zones should enjoy enhanced protection because they were zones of environmental and cultural importance. They should not be subject to the possibility of becoming military targets.
Turning to the topic “Immunity of State officials from foreign criminal jurisdiction”, he said he agreed that acts conducted in an official capacity or private capacity were not related to questions of whether those acts were illicit in nature. In various criminal regimes, there had been “special” crimes that generated criminal responsibility only for persons who were qualified under the norm. That could include State officials in cases of corruption in the private sector. It would not be timely to come up with a new model on the relationship between individual responsibility and responsibility of State on the issues of criminal immunity for State officials. With respect to language used in draft articles, he said it was not appropriate use “beneficiarse” in the Spanish version. It would be more appropriate to use “gozar”, as had been agreed in the Vienna Convention on Diplomatic Relations.
Turning to the topic “Provisional application of treaties”, he said draft guideline 1 was very useful and reflected the voluntary nature of provisional application for States and international organizations. He urged continued work on legal obligations and effects induced by provisional application.
JOSE JAVIER GOROSTEGUI OBANOZ (Chile) said the immunity of State officials from foreign criminal jurisdiction was a manifestation of the principle of sovereign equality of States and was procedural in nature. Its sphere of application involved verifying whether a forum State could exercise its jurisdiction over another State; it did not consider whether the conduct of the individual enjoying immunity was lawful or unlawful. Acts performed in an official capacity were a manifestation of State sovereignty and a form of exercise of the elements of governmental authority. A discussion on the scope of the process of humanization of international law was welcomed so that immunity from jurisdiction could not be invoked simply to ensure impunity of the most serious crimes covered by international law. As well, such immunity should be brought into line with the rules on territorial and extraterritorial jurisdiction of State in dealing with such crimes.
On the “Provisional application of treaties”, he said that it was important to mention aspects of national law that could limit the provisional application of certain provisions of treaties in cases where those provisions required prior approval by the legislature. Provisional application of a treaty had legal effects that created rights and obligations. Thus, non-compliance with the provisionally applied treaty might create a liability on the part of the non-complying State. It was therefore essential that the wish of States to apply a treaty provisionally, or to decline to do so, should be clearly expressed. Each State was free in its sovereignty to decide whether or not to apply a treaty provisionally, without which it would be necessary to await the treaty’s entry into force.