As International Law Commission Report Review Continues, Sixth Committee Tackles ‘Subsequent Agreement, Subsequent Practice’ in Treaty Interpretation

GA/L/3531
26 October 2016
Seventy-first Session, 22nd & 23rd Meetings (AM & PM)

As International Law Commission Report Review Continues, Sixth Committee Tackles ‘Subsequent Agreement, Subsequent Practice’ in Treaty Interpretation

As the Sixth Committee (Legal) continued its consideration of the first cluster of topics from the International Law Commission’s annual report, including “Protection of persons in the event of disasters” and “other decisions and conclusions”, speakers, in a heated debate, tackled the complex matter of subsequent agreements and subsequent practice when interpreting treaties.

The day-to-day application of the treaty should prevail against “what was set in stone,” the representative of Argentina said, addressing the draft conclusions on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”.  Stressing the dynamic nature of international law, he said that a treaty was designed to survive over time and respond to its surrounding scientific, technological and even geopolitical reality. 

The views of expert treaty bodies were “highly persuasive” and had the capacity to influence the practice of constituent States, said New Zealand’s delegate, adding that such bodies provided a valuable mechanism for guiding implementation by States Parties.  As noted in draft conclusion 13, while the treaty text took precedence, the pronouncements of expert treaty bodies could contribute to identifying subsequent agreement or subsequent practice of the constituent States.

The representative of Brazil focused on the legal significance of pronouncements of expert bodies for the purpose of interpretation and as forms of practice under a treaty.  While those pronouncements might not be legally binding, they carried authority and weight, he emphasized.

However, Greece’s representative pointed out that while the draft conclusions would provide useful guidance and assistance, and while decisions adopted within the framework of a Conference of States Parties might be a direct source of subsequent agreement or subsequent practice, the practice of an international organization, as well as the pronouncements of expert treaty bodies, did not constitute, in and of itself, subsequent practice.

The cornerstone of interpretation was the language of the treaty, Singapore’s representative stressed, noting that given the range of different treaty monitoring bodies with varying responsibilities, the effect and weight of pronouncements by such bodies must depend first on the provisions inscribed in their constituent documents.  

Iran’s delegate reminded the Committee that subsequent agreements and subsequent practice in relation to the interpretation of treaties were understood to be confined within the framework of articles 31 and 32 of the Vienna Convention on the Law of Treaties.  Under those articles, a pronouncement of an expert treaty body could not give rise or refer to a subsequent agreement or subsequent practice by parties.

During the debate, delegates also expressed divided stances on the relationship between the Sixth Committee and the International Law Commission, as well as the location of future Commission sessions. 

The representative of Slovakia emphasized that the Commission was an independent body of experts whose interaction with the Sixth Committee should occur when the Committee reviewed its report.  Noting that the Commission would be holding part of its seventieth session in New York, he stressed that changing the well-established and longstanding practice of holding sessions in Geneva lacked merit.

 

Yet, the representative of Cuba expressed concern about the “meagre interaction” between the Sixth Committee and the Commission, adding that the work done by the Commission both in the subjects under study and in the process of codifying some of the pressing problems of humanity had not had a particular result in the Committee.

Still, other speakers commended the Commission’s inclusion of new topics to its long-term programme of work, with Slovenia’s delegate welcoming the Commission’s decision to include “Succession of States in respect of State responsibility”.  Highlighting his country’s experience during the dissolution of the Socialist Federal Republic of Yugoslavia, he reminded the Committee of the consequences that could arise from unresolved succession issues.  The topic deserved examination due to new developments in State practice and jurisprudence. 

Prior to taking up the Commission’s report, the Sixth Committee authorized its Chairman to send a letter to the General Assembly President drawing attention to certain aspects of the reports pertaining to the Administration of Justice at the United Nations.  Among other things, the Secretariat was urged to strengthen and increase outreach activities that would ensure universal accessibility to the system of Administration of Justice and inform staff about available sources of legal and other advice.

Also speaking today were the representatives of Mexico, Poland, Ireland, Israel, Thailand, Colombia, Viet Nam, Cyprus, Japan, Malaysia, Sri Lanka, Belarus, Republic of Korea, Togo, Algeria, and Egypt.

The Sixth Committee (Legal) will next meet at 3 p.m. on Thursday, 27 October, to continue consideration of the report of the International Law Commission.

Statements on Cluster I

MARIA TELALIAN (Greece) said that “Identification of customary international law” was one of the most theoretical topics that the International Law Commission (ILC) had ever put on its agenda.  Based on an exhaustive study of relevant case law and scholarly writings provided lawyers, the much-needed normative guidance dealt with the thorny issue of identification and precise content of customary international law rules.  

Draft conclusion 6 pointed out that practice as a constituent element of international law might include inaction, she said.  However, that would be only under certain circumstances.  The relevant commentary made it clear that it referred to cases of “deliberate abstention from acting”.  That qualification should be complemented by another element, namely that the deliberate abstention refers in particular to interested States.

Turning to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties,” she added that the draft conclusions would provide useful guidance and assistance to States, international courts and tribunals, as well as to any other actors whose role was to interpret international treaties.  Nonetheless, it was important to bear in mind that while decisions adopted within the framework of a Conference of States Parties might be a direct source of subsequent agreement or subsequent practice, the practice of an international organization as such, as well as the pronouncements of expert treaty bodies, did not constitute, in or by itself, subsequent practice.

GEORGE GALINDO (Brazil), speaking on “Protection of persons in the event of disasters,” noted the Commission’s recommendation that the General Assembly consider adopting a convention on that issue.  An international instrument would provide a broader legal framework on the matter and fill an existing gap.

Turning to “Identification of customary international law,” he said that the circulated survey made the evidence of customary international law more readily available.  With regards to the question of “persistent objector”, he stressed that the commentaries to draft conclusion 15 clarified that it was without prejudice to any issues of jus cogens.

Turning to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties,” he took note of the discussions held in the Commission regarding the legal significance of pronouncements of expert bodies for the purpose of interpretation and as forms of practice under a treaty.  While those pronouncements might not be legally binding, they carried authority and weight, he said.

Regarding the inclusion in the Commission’s long-term programme of work of “The settlement of international disputes to which international organizations are parties” and “Succession of States in respect of State responsibility”, he added that the General Assembly could also submit topics to be examined, thus contributing to the identification of areas where the progressive development of international law could be made.

ALEJANDRO ALDAY (Mexico), associating himself with the Community of Latin American and Caribbean States (CELAC), said he supported the Commission submitting the draft articles on “Protection of persons in the event of disasters” to the General Assembly for the elaboration of a convention.  With regard to draft article 11, because of the principle of State sovereignty, it was necessary to replace the term “has the duty to” with “has the right to,” to recognize that States exercised the main rules in terms of managing the provision of assistance on their territory.

Turning to “Identification of international customary law,” he commended the progress of the Commission, but said that in order to ensure the conclusions and commentaries could be adopted in clear form, some changes should be made.  For example, although he agreed on the relevance of the inclusion of a special mention of the work of the International Committee of the Red Cross (ICRC), he suggested the text be revised to bring it in line with the scope of the preceding commentary on the conduct of non-State actors.

Turning to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” he said he was pleased to see the adoption of the draft conclusions.  The work had given a better understanding to the general rule on the interpretation of treaties as well as complementary means, which was of practical use to anyone called upon to deal with treaties.  Written comments would be submitted on the matter in due course.

ANDREJ MISZTAL (Poland) said that the Commission’s work on “Protection of persons in event of disasters” rightly led to the conclusion that sovereignty was not only the source of States’ rights, but also of their obligations.  Expressing appreciation for the draft articles, he noted that they contained elements of both statutory functions of the Commission, namely codification and progressive development of international law.  However, before deciding to initiate negotiations, it would be useful to see how the draft articles were used in international practice.

Turning to “Identification of customary international law,” he said that the draft conclusions could offer practical guidance, particularly for national courts, which were increasingly called upon to apply international law.  Nevertheless, it was unfortunate that neither the guidelines nor the commentary explained the question of evolution of customary international law rules.  Draft conclusion 12 on resolutions of international organizations and intergovernmental conferences was too far-reaching in restraining the role of international organizations in creating customary rules.  Furthermore, that provision did not differentiate between “custom binding” only within the international organization, on one hand, and general customary rules, on the other.

On “Subsequent agreements and subsequent practice”, he said he agreed with the Commission that “silence by a party should not be presumed to constitute subsequent practice […] accepting an interpretation of a treaty as expressed in a pronouncement of an expert treaty body”.  He also reiterated his country’s 2014 proposal for a new topic of work on “duty of non-recognition as lawful a situation created by a serious breach by a State of an obligation arising under a peremptory norm of general international law.”

ANNE-MARIE O’SULLIVAN (Ireland), aligning herself with the European Union, said she welcomed the adoption of the draft articles and commentaries on “Protection of persons in the event of disasters,” noting that the articles would contribute to the codification and harmonization of that field of law and provide useful guidance to States.

On “Identification of Customary International Law,” she expressed her gratitude for the memorandum on the role of decisions of national courts in the case law of international courts and tribunals for the purpose of the determination of customary international law.  With regards to the suggested changes to draft conclusion 4, she noted that, while generally supportive of adherence to language used in the International Court of Justice’s judgements, the revised draft as set out in paragraph 32 of the Special Rapporteur’s report had lost some of the meaning of the earlier draft, particularly with regards to the reference on the primary role of State practice in contributing to the creation of customary international law.

On “Subsequent agreements and subsequent practice in relation to the interpretation of treaties,” she welcomed the reference in paragraph 3 of draft conclusion 13 that “silence by a party shall not be presumed to constitute subsequent practice accepting an interpretation of a treaty as expressed in a pronouncement of an expert treaty body.”

On “other decisions and conclusions of the Commission,” she voiced her support for the inclusion of the topic “The settlement of international disputes to which international organizations are parties” in the long-term programme of work, as well as the inclusion of “Disputes of a private nature to which international organizations are parties”.

AVICHAI MANDELBLIT (Israel), in regards to “Protection of persons in the event of disasters”, said that the undertaking to engage in a protection mission should not be considered in terms of legal rights and duties.  Instead, the draft articles should be formulated as guidelines or principles for international cooperation efforts undertaken on a voluntary basis.  As such, the language in numerous drafts should be altered to avoid creating the impression of the assertion of new “rights” and “duties.”

Turning to “Identification of customary international law,” he said that there was a growing tendency among some academics and State actors to claim that certain principles reflect customary international law “without the serious and methodical examination of State practice and opinio juris that is required.”  While the draft conclusions adopted by the Commission generally reflected a healthy approach, he expressed reservations regarding the vague language sometimes used in the text as well as a lack of emphasis on the nature of the rule in question, the overall context, and particular circumstances, despite the general caveat expressed in draft conclusion 3.

DAPHNE HONG (Singapore) said that “Identification of customary international law” was particularly important for small States, adding she was heartened the Commission’s work addressed some of the concerns her Government had previously raised, including draft conclusion 16, which addressed the “persistent objector” principle.  The commentary now emphasized that the persistency of such objection should be assessed in a pragmatic manner.

 

Turning to “Subsequent agreements and subsequent practice”, she referred to draft conclusion 13 and its accompanying commentary, adding that she agreed with the statement that “any possible legal effect of a pronouncement by an expert treaty body depends, first and foremost, on the specific rules of the applicable treaty itself”.  The cornerstone of interpretation was the language of the treaty and, given the range of different treaty monitoring bodies with varying responsibilities, the effect and weight of pronouncements by such bodies must depend first on the provisions inscribed in their constituent documents.

Turning to “Other decisions and conclusions of the Commission,” she underlined her strong support for work on “The fair and equitable treatment standard in international investment law,” as well as the continued inclusion of “Protection of personal data in transborder flow of information”.

VIRACHAI PLASAI (Thailand) welcomed completion of the topic “Protection of persons in the event of disasters”, adding that the draft articles consolidated existing rules of international law and were a useful guide for international cooperation on disaster risk reduction and response.  Thailand was working with other countries in Southeast Asia to respond jointly to disasters and reduce losses.  Disaster relief must always be carried out according to rules of international human rights and international humanitarian laws.

Turning to “Identification of a rule of customary international law”, he said he supported the two-element approach taken in the draft conclusions, stating that such identification required an assessment of both general practice and acceptance of that practice as law.  While “acceptance as law”, or opinio juris, might be considered as the “subjective element”, it required a careful assessment, as forming a rule of customary international law should not be lightly regarded as having occurred.

He went on to say that “Subsequent agreements and subsequent practice” should be considered for the purpose of treaty interpretation only.  Subsequent agreements with a view to amending a treaty were subject to article 39 of the Vienna Convention on the Law of Treaties, while the possibility of modifying treaties by subsequent practice of the parties had long been excluded from the Law of Treaties.  He underscored that he did not recognize the possibility of modifying a treaty by subsequent agreement or conduct within the meaning of article 31 of the Convention.

CARLOS ARTURO MORALES LÓPEZ (Colombia), associating himself with CELAC, said that he supported the elaboration of the draft articles on “Protection of persons in disasters” into a convention.  Natural disasters caused by human forces were occurring throughout the planet, regardless of the level of development of the country.  Hurricane Matthew was an example of extreme meteorological events.  The Paris Agreement illustrated that there was a pronounced interest from the international community to adopt a legally binding instrument on that issue.

He also said he was pleased to see the recommendations from the ILC to celebrate the first part of its next session in New York in response requests expressed many times in the Sixth Committee.

NGUYEN MINH VU (Viet Nam) said that the draft articles on “Protection of persons in the event of disasters” did not form a basis for the elaboration of a convention.  The primary role for preventing and responding to disaster rested primarily on affected States.  It was the right of the affected State to accept or decline offers of assistance.  Furthermore, there should be additional provisions to ensure that relief personnel who were guaranteed rights under the draft articles observed the rules and regulations of the host State.

On “Identification of customary international law,” he reiterated support for the two-elements approach.  Noting diversions in views of States regarding draft conclusions 6 and 10, he said that the Commission should address those concerns and consider the topic further to establish clear guidelines and criteria for determination of State practice and opinio juris

Commending the draft conclusions on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties,” he said they clarified how to identify such agreements and practices and their role in the interpretation of treaties.

VASILIKI KRASA (Cyprus), on “Identification of customary international law”, reiterated her concerns regarding the proposed draft article 15.  That addressed the fact that available international jurisprudence had largely dealt with the matter obiter dicta and in cases where the rule in question had not acquired the status of customary international law.  Thus, it would be premature to develop a conclusion on the matter.  Furthermore, the work had not dealt with the temporal aspect of whether an objection could be maintained in the long run.  In terms of State practice, there were numerous examples where States abandoned their initial objections in order to accept rules that were moving towards crystallization. 

Noting that her delegation had been an early and active proponent of the notion of peremptory norms - jus cogens - in international law, she added that given that articles 53 and 64 of the Vienna Convention on the Law of Treaties dealt with the invalidating effect of jus cogens, the current work could perhaps deal further with the question of who determined whether there was a conflict with jus cogens.  While she agreed with the precept that the Commission should avoid any outcome that could result in, or be interpreted as, a deviation from the Vienna Convention, she stressed that the scope of that topic extended beyond the law of treaties, and included other areas of international law, such as the responsibility of States for internationally wrongful acts.

LISA SAIJO (Japan) noted that, per article 17 of the Commission’s Statute addressing proposals for topics, she believed States should more actively suggest them.  She referred to two new topics in the long-term programme of work, including the “Settlement of disputes to which international organizations were parties” and the “Succession of States in respect of State Responsibility”.  Of the former, given the vast range of international organizations, it might be difficult to find legal norms.  Of the second, she said that it required careful consideration because it was a sensitive issue.

Turning to “Protection of persons in the event of disasters,” she emphasized that due to the earthquake and tsunami in Japan, she was keenly interested in the topic.  The sovereignty of the affected States must be respected, but it should not be a barrier to humanitarian assistance.

In regards to “Identification of customary international law,” she said that in view of the increasing workload of international tribunals, that subject had the potential to make a useful contribution.  However, given that it touched on the question on the nature of international law itself, a prudent and balanced approach was necessary.

On “Subsequent agreements and subsequent practice in relation to the interpretation of treaties,” she acknowledged the active debate on the legal significance on the pronouncements of expert bodies.  She also stated her agreement with draft conclusion 13, paragraph 3, based on the understanding that the pronouncements of the expert bodies did not amount to subsequent practice, although they might give rise to a subsequent agreement or practice.

DAVID DOLPHIN (New Zealand), focusing on “Protection of persons in the event of disasters”, said that in times of disaster, people were at their most vulnerable, and in many cases the mechanism of civil society struggled to function, especially in the early phases.  Therefore, it was necessary to lay down a clear framework of legal rules to facilitate practical international cooperation in disaster response.  A pragmatic, rather than a strict “rights-based” approach was the most appropriate.  He also said he looked forward to discussing with other Member States whether the draft articles could provide a mechanism to develop guidance for countries to assist in managing protection in the immediate aftermath of a disaster.

Voicing support for the draft conclusions on “Subsequent agreements and subsequent practice”, he added that draft conclusion 13 provided a basis for recognizing that the treaty text took precedence, but that the pronouncements of expert treaty bodies could contribute to identifying subsequent agreement or subsequent practice of the constituent States.  Expert treaty bodies provided a valuable mechanism for guiding implementation by States Parties through their observations on best practice and the development of minimum standards of compliance.  Furthermore, the views of expert treaty bodies were “highly persuasive and have the capacity to influence the practice of constituent States,” resulting in a subsequent practice, he said.

MOHO SHAHRYSHAM KAMRAN (Malaysia) said that elaborating the draft articles on “Protection of persons in the event of disasters,” into a legally binding framework would not be appropriate as natural disasters were impossible to predict, and flexibility was needed.  The implementation of a convention would lead to protocols and procedures which could complicate the process of dispatching aid.

Turning to “Identification of customary international law,” he welcomed the adoption of the draft texts.  The topic was crucial to the progressive development of international law; a common consensus among Member States must be achieved.  His Government was studying the conclusion and commentaries and would submit its comments and observations by the stipulated deadline.

On “Subsequent agreements and subsequent practice”, he said that the draft conclusions restated the rules of treaty interpretation given in the 1969 Vienna Convention.  As such, the draft conclusions could serve as useful guidance for international courts and tribunals, and State and non-State actors.  Addressing draft conclusion 13 on the pronouncement of expert treaty bodies, he said while he appreciated its importance, caution should be exercised, taking into account the concerns addressed in the commentaries, in particular in paragraphs 1 through 3.

JOSÉ LUIS FERNANDEZ VALONI (Argentina) said that the draft articles on “Protection of persons in the event of disasters” were “extremely worthwhile” and voiced support for the recommendation to draw up a convention on their basis. 

While some of the preliminary conclusions on “Identification of customary international law” captured “relatively peaceable doctrines,” others had controversial elements, he said.  Concerning the impact of the practice of international organizations on the formation or expression of international law, it would be expedient to clarify whether acts carried out in the internal sphere of organizations could be considered relevant or not.  Furthermore, the conduct of other actors as a tool for assessing the practice of States and international organizations did not establish any limits as to the type of conduct that might be sued for such assessment.

Addressing “Subsequent agreements and subsequent practice”, he said that in preliminary conclusion 11.2 it was presumed that the intention of the parties was to interpret the treaty, and not change it.  However, the relationship between "interpretation" and "change", as well as the possibility that further State practice could modify a treaty, had been debated since the United Nations Diplomatic Conference on the Law of Treaties.  Such modification was favourable; the day-to-day application of the treaty should prevail against “what was set in stone.” 

He went on to say that a treaty was designed to survive over time and respond to its surrounding scientific, technological and even geopolitical reality.  Stressing the dynamic nature of international law, he referred to several cases of the International Court of Justice that could be read in that light, including advisory opinions on the Legal Consequences for States of the Continued Presence of South Africa in Namibia and the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. 

AMRITH ROHAN PERERA (Sri Lanka) stated that the draft articles adopted by the commission on “Protection of persons in the event of disasters” reflected a very careful balance between recognizing the principle of sovereignty and the attended primary role of the affected State, while also underlining the fundamental value of solidarity in international relations.  The draft articles recognized that the reduction of risk of disasters should meet primarily the “needs” of the persons concerned, whilst fully respecting the rights of such persons.  That approach was appropriate, instead of getting enmeshed in a futile “needs versus rights” debate.

With regards to “Subsequent agreements and subsequent practice”, he said that the draft conclusions on the topic would add clarity to the principles of treaty interpretation as contained in articles 31 and 32 of the Vienna Convention on the Law of Treaties.  On pronouncements of treaty bodies, he welcomed the fact that the draft conclusions specifically provided for a presumption against silence as constituting acceptance of the pronouncement of an expert body as subsequent practice under the Vienna Convention.  Acceptance of an interpretation of a treaty as expressed in a pronouncement of an expert treaty body could not be lightly presumed.

RUSLAN VARANKOV (Belarus) said that the scope of the Commission’s work on “Protection of persons in the event of disasters” went beyond the purview of the initially announced topic.  Stressing that it was best to focus on the rights and not the needs of the victims, he added that articles 4 and 5 should be merged.

Turning to “Identification of customary international law,” he noted that in draft conclusion 5, it was expedient to add a direct reference to the conduct of States, while draft conclusion 16 should include objective criteria for including States in a group that had particular customary international law because of geographic or other specificities.

Addressing the topic “Subsequent agreements and subsequent practice”, he recommended adding a definition of modus vivendi to draft conclusion 6.  On “Crimes against humanity,” he added that nothing could justify those crimes, including security concerns, and the principle of aut dedere aut judicare should be in line with the sovereign equality of States and non-interference in States’ affairs.

The guiding principles 5 and 6 in “Protection of the atmosphere” were organic and should be placed in the first part of the draft or preamble, he continued.  Finally, on “Jus cogens,” he said he considered it unjustified to conclude an international treaty on that topic.  The decision of international courts should not undermine the practices of States.

SHIN SEOUNG HO (Republic of Korea), speaking on “Protection of persons in the event of disaster,” said that due to increasing severity of natural disasters, the work of the ILC would provide essential guidance for efficient humanitarian relief.  The Commission had identified the need for a duty of State.  In cases where a disaster exceeded capacity to respond, the State should seek assistance.  Draft article 11 would improve the rights of persons in need during disasters, but should be further refined for cases when a disaster manifestly exceeded a State’s ability to respond.

With regards to the “Identification of customary law,” he commended the speedy working methods of the Commission but said a more cautious approach might be required in light of the importance of the topic, which included controversial issues such as “persistent objector.”

Turning to the topic of “Subsequent agreements and subsequent practice in relation to the interpretation of treaties,” he said, given the practical difficulties in applying article 31 and 32 of the 1969 Vienna Convention, that topic should give practical guidelines on the interpretation of treaties.  In addition, underscoring that it was timely to deal with the matter of expert treaty bodies, he said that the text of draft conclusion 13 that replaced “reflect” with “refer to” was useful and he supported the modification of that text.

ALI GARSHASBI (Iran) said that his delegation was uncertain whether it was the right time to adopt the draft articles on “Protection of persons in the event of disasters” in the form of a treaty.  International cooperation played a crucial role in managing disasters but the affected State had the exclusive right to assess the threshold of the disaster. 

Noting that practice demonstrated by Member States was central to the “Identification of customary international law,” he said that the decisions of international courts and tribunals and the writings of publicists remained subsidiary even as evidence of identification of custom, comparable to the stipulation in article 38 of the Statute of International Court of Justice concerning sources of international law.

Turning to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties,” he said that such agreements and practices in relation to the interpretation of treaties were understood to be confined within the framework of the Vienna Convention’s articles 31 and 32. 

He said he could not concur with the Rapporteur that a pronouncement of an expert treaty body could give rise or refer to a subsequent agreement or subsequent practice by parties under article 31 (3) or more categorically under article 32.  While subsequent practice or agreement was understood to refer to actual practice or agreement of all the States Parties to a treaty, pronouncements of experts serving in their personal capacity could not be regarded as such.

DIDEMAN N. MADJAMBA (Togo) said that while some of the opinions of the International Law Commission needed to be improved, that body played an important role because of its eminent experts and lawyers.  Noting that the Commission would have new members in a few days, he underscored the fact that Togo had submitted a candidate for consideration.

 

The deliberations of the Commission had enabled discussion of crucial issues, including “Protection of persons in the event of disasters” and “Protection of the atmosphere”, he said.  Those issues remained at the heart of the work of his Government.  He noted his support of the Commission’s proposal to include new topics, including “Settlement of international disputes to which international organizations are parties” and “The succession of States in respect of State responsibility.”  In addition, he also welcomed the recommendation that the first part of the ILC’s seventieth session in 2017 take place in New York.

ANET PINO RIVERO (Cuba), associating herself with CELAC, voiced concern about “the meagre interaction between the International Law Commission and the Sixth Committee.”  The work done by the Commission both in the subjects under study and in the process of codifying some of the pressing problems of humanity had not had a particular result in the Committee.

On “Protection of persons in the event of disasters,” she noted that the draft articles should use the same definition of disaster as the glossary of the United Nations Office for Disaster Risk Reduction.  Furthermore, the texts must indicate that prior consent or request from the affected State was required.

Turning to “Identification of customary international law,” she recalled article 38.1 of the Statute of the International Court of Justice, which recognized in subsection b that custom was a source of international law.  In addition, it was vital to recognize the importance of custom in State practice. 

She also acknowledged the important work done by the Commission in “Subsequent agreements and subsequent practice in relation to the interpretation of treaties.”  It was not necessary to change the Vienna approach, she said, but it was crucial to avoid ambiguity in the interpretation of international treaties.  Interpretation of treaties was done through various approaches and one was not more important than others.

METOD SPACEK (Slovakia), on “Protection of persons in the event of disasters”, said he supported the strong accents placed on respect for human dignity and protection of human rights in the draft articles.  Any disaster relief action not respecting those principles could not be considered meaningful.  The affected State was best-placed to take immediate action.  Still, the severe nature of disasters could pose demands for that State.  Stressing that the United Nations and other actors could significantly contribute to disaster relief action, he said implementing that duty might also strengthen solidarity between States.

Turning to “Identification of customary international law”, he said he endorsed the two-element theory, which enjoyed overwhelming acceptance within the international community.  The distinction between those elements might in certain cases be just a minor detail subject to the sensitivity of the entity identifying customary international rule.  However, each element must be considered and examined separately, with neither having primacy nor compensating the other.  It was also inevitable that there was no hierarchy between the different forms of evidence of the two elements.

On “Other decisions and conclusions of the Commission”, he welcomed establishment of a planning group for more efficient long-term planning of the Commission’s work.  It was necessary to prioritize, as complexities of the present international legal order presented the Commission with an increasing number of topics to be possibly addressed.  As to future topics, the “Settlement of international disputes to which international organizations are parties” was a natural step from earlier adopted articles on the responsibility of international organizations.

Noting that the Commission would be holding part of its seventieth session in New York, he said that changing the well-established longstanding practice of holding the ILC’s sessions in Geneva lacked merit.  The Commission was an independent body of experts.  Interaction with the Sixth Committee should occur during the session of the Committee as it reviewed the ILC’s report and not during the Commission’s sessions.

MEHDI REMAOUN (Algeria), in regards to “Protection of persons in the event of disaster, said that he was open to examine, with other Member States, appropriate follow-up to the recommendation of elaborating those texts into a convention.

 

Turning to “Identification of customary international law”, he noted the unique character of the General Assembly and highlighted the role that resolutions adopted by international organizations or at intergovernmental conferences might play in the determination of rules of customary international law.

On “Protection of the atmosphere”, he welcomed the Special Rapporteur’s report, and highlighted the addition in the preamble of special situations and needs of developing countries.  Other paragraphs could be added to the preamble at a later stage, and including the insertion of recognizing the atmosphere as a common heritage of humankind, as well as that most historical atmospheric pollution originated with developed countries.  Regarding guideline 8, he said he favoured a definition of “cooperation” that acknowledged common but differentiated States responsibilities.

BORUT MAHNIČ (Slovenia) said he fully supported the Commission’s work on “Protection of persons in the event of disaster”.  The ILC’s approach was the only guarantee for the successful recognition of rules in disaster response by States, international organizations and non-governmental actors.

Regarding “Identification of customary international law”, he said any possible comments would be reserved until the 1 January 2018 deadline.  It was also essential that evidence of customary international law be made readily available.  The Commission’s decision to request the Secretariat to prepare a memorandum on the present state of such evidence was welcomed.

On “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said that comments would be reserved until the 1 January 2018 deadline.  Referring to the Special Rapporteur’s fourth report and conclusion 13, a question had developed as to whether the Commission itself could be included in that context.  If not, he questioned whether its role as described amending the commentary to the present conclusion accordingly.

He welcomed the Commission’s decision to include in its long-term programme of work “Succession of States in respect of State responsibility”.  The topic deserved examination due to new developments in State practice and jurisprudence.  There was a potential to fill gaps that remained after the completion of the codification of succession, in respect to treaties as well as State property, archives and debts. 

He went on to say that the dissolution during the 1990s of the then-Yugoslavia was a typical case of dissolution, i.e. a complete disintegration of a predecessor State.  That dissolution represented one of the most important cases could merit amending the conclusion or drafting a separate one, or at least for the analysis of the topic in recent history.  As one of the successor States of the former Socialist Federal Republic of Yugoslavia, he underscored that he fully understood the consequences that could arise from unresolved succession issues.

EMAD MORCOS MATTAR (Egypt) welcoming the idea of having part of the Commission’s seventieth session in New York, then noted that the adoption of the preamble and draft articles on “Protection of persons in case of disasters” was an important achievement and would strengthen discussion of that issue.

He also welcomed the adoption of the draft conclusions on the “Identification of customary international law,” noting it would help tribunals determine what customary international law was.

Turning to “Crimes against humanity” he said that he trusted that the work would end with a draft convention criminalizing such crimes.  On “State practice in relation to the interpretation of treaties,” he said of draft conclusion 13 that it supplemented what was in the Vienna Convention and would help States live up to their commitments.

He then focused on “Jus cogens”, stating that the work done on that topic was to be commended.  It was up to the Commission to take a global approach to jurisprudence with regard to that issue.  He also voiced support for the Commission taking up two new topics, including “Settlement of international disputes to which international organizations are party” and the “Succession of States in respect of State responsibility.”  Those matters would help fill some gaps in international law.

For information media. Not an official record.