Legal Committee Approves Four Draft Resolutions on United Nations International Trade Law Commission
As International Law Commission Report Review Continues, Speakers Debate Second Cluster of Topics, Including Jus Cogens, Crimes against Humanity
Approving four draft resolutions relating to the report of the United Nations Commission on International Trade Law (UNCITRAL), the Sixth Committee (Legal) today reaffirmed the important role of that body and its work, before continuing its deliberations on the report of the International Law Commission.
By the text on UNCITRAL’s report, the General Assembly would, among other things, reaffirm the importance, particularly for developing countries, of the Commission’s work on technical cooperation and assistance in the field of international trade law reform and development.
Included in the draft resolution on Model Law on Secured Transactions, the General Assembly would recommend that all States give favourable consideration to the Model Law when revising or adopting legislation relevant to secured transactions.
Regarding the draft text on the 2016 Notes on Organizing Arbitral Proceedings, the General Assembly would recommend the use of the 2016 Notes, as well as also request the Secretary-General to publish those Notes, including electronically, in the six official languages of the United Nations.
The text on technical notes on online dispute resolution would have the General Assembly recommend that all States and other stakeholders use the Technical Notes in designing and implementing online dispute resolution systems for cross-border commercial transactions.
As the Sixth Committee continued its consideration of the International Law Commission’s (ILC) annual report, Pedro Comissário Afonso, Chairperson of the ILC, introduced the second cluster of topics, giving an overview of the Commission’s key work on “Crimes against humanity”, “Protection of the atmosphere” and “Jus cogens”.
Emphasizing progress made by the Commission with regard to “Crimes against humanity,” he highlighted the adoption of six new draft articles, which addressed such matters as “criminalization under national law” and the “establishment of national jurisdiction.”
Of the latter, he said that it addressed cases where the alleged offender was present in a territory and the State did not extradite or surrender that person. In that event, the State would nevertheless be required to establish jurisdiction. That obligation helped to prevent an alleged offender from seeking refuge in a State that had no connection to the offence.
The Commission had also provisionally adopted five guidelines with regard to “Protection of the atmosphere,” he said. Highlighting that the important question of “environmental impact assessment” was at the heart of one of those guidelines, he stressed the obligation of States to put in place legislative and regulatory measures for an environmental impact assessment to be conducted with respect to any proposed activities.
Speaking on “Jus cogens”, he said that its three draft conclusions, which had been provisionally adopted, were still with the Drafting Committee, but that an interim report had been produced on those conclusions. He also noted that the Special Rapporteur had advised against developing an illustrative list of norms of jus cogens, adding that the Commission had further discussed the possible existence of regional jus cogens. While some members had categorically rejected that possibility, others pointed to examples in which regional institutions, such as the Inter-American Commission on Human Rights, had referred to regional jus cogens.
Noting that the ILC had deliberated on the topic of jus cogens for the first time, speakers debated the issue of developing such a list. While the representative of Iceland said that it was probably not advisable to seek to elaborate a list of norms, as it might have a negative impact on the status of equally important norms not included, she also noted that the concept of regional jus cogens norms was difficult to reconcile with the universal and unconditional character normally ascribed to jus cogens.
The United Kingdom’s delegate said that the Commission could make a useful contribution to the clarification of international law if it confined its parameters to methodology in explaining how to identify pre-existing jus cogens and the consequences of such identification. He was not against the development of an illustrative, non-exhaustive list of pre-existing jus cogens, provided that list did not detract from the principal focus of work.
While voicing support for the Commission’s approach to the topic in the form of draft conclusions, the representative of the Republic of Korea observed the divergent opinions regarding developing such a list. Nonetheless, he pointed out that without some kind of list, the draft conclusions would be less effective.
Delegates also deliberated on the topic “Crimes against humanity,” with Hungary’s representative stressing the need for strong legal measures on that matter. He stated his support for the formulation of draft articles that might ultimately form the basis of a convention that would help fight impunity, adding that draft article 5 was the crucial part of such a future convention.
Also supporting draft article 5, the representative from Switzerland urged States to define in their national legislation different types of acts constituting crimes against humanity and take measures establishing criminal responsibility of hierarchical superiors.
However, the delegate of China pointed out that deliberations in the Sixth Committee in 2015 had made it apparent that Member States had not reached a wide consensus regarding the elaboration of a convention on “crimes against humanity”. Noting that draft article 5 stipulated that States should legislate to list crimes against humanity as offences under their criminal codes, he stressed that, on national platforms, there should be “certain room for autonomy in decisions.”
The Committee also heard from the Special Rapporteurs on “Protection of persons in event of disasters,” “Subsequent agreements and subsequent practice in relation to the interpretation of treaties,” and “Identification of customary international law.”
Also speaking today were representatives of Indonesia, Ecuador, India, Cuba, and Czech Republic, as well as representatives of the European Union, Council of Europe, International Committee of the Red Cross (ICRC) and International Federation of Red Cross and Red Crescent Societies (IFRC).
The Sixth Committee will next meet at 10 a.m. on Friday, 28 October, to continue consideration of the report of the International Law Commission.
Draft Resolutions
The Committee took action on four draft resolutions on the United Nations Commission on International Trade Law (UNCITRAL), including one on the report of that body (document A/C.6/71/L.10), and a second on the Model Law on Secured Transactions (document A/C.6/71/L.11).
The other two texts concerned UNCITRAL’S 2016 notes on organizing arbitral proceedings (document A/C.6/71/L.12) and its technical notes on online dispute resolution (document A/C.6/71/L.13).
The Sixth Committee approved all four texts without a vote.
Statements on Cluster I
FERRY ADAMHAR (Indonesia) said that “Protection of persons in the event of disasters,” was of great importance to his country because of its location in the Pacific Ring of Fire. Natural calamities had become second nature. The reference to the principle of sovereignty of State reflected and reaffirmed the primary role of States in the provision of disaster relief and assistance. It was within the context of that principle that the entire draft article should be understood. The text on the duty to cooperate appeared to impose new rights and duties to States during disasters. Exercise of such duties should only be taken in light of the principle of sovereignty.
Turning to “Identification of customary international law,” he said of draft article 12 that resolutions adopted by international organizations could not in and of themselves create a rule of customary international law. In addition, he highlighted draft article 15 on the “persistent objector rule,” noting its importance for the preservation of the consensual nature of international customary law.
HORACIO SEVILLA BORJA (Ecuador) said that at a time when the illegal exercise of military, political and economic power prevailed, it was absolutely crucial to codify existing international law. It was also important to progressively develop international law to keep up with advances in legal knowledge. As a specialized technical organ, the International Law Commission (ILC) had made many relevant contributions to that.
Praising the Commission’s tradition of “legal vigour and excellence,” he said, in regards to “Protection of persons in the event of disasters”, that solidarity in disaster response was especially crucial because of the increase in frequency and seriousness of such events, as well as the consequences of climate change. He voiced support for the Commission’s recommendation to elaborate a convention on the matter as there was no legally binding universal instrument on that.
Lauding the work of the Commission on “Subsequent agreements and subsequent practice in relation to interpretation of treaties,” he also noted that the ILC had dealt with the “Identification of customary international law” for the first time. The methodology prepared by the Commission would be useful for all legal practitioners, particularly national judges. The United Nations must continue to hold courses in international law in Latin America, he stressed, adding that he also welcomed the proposal to hold part of the Commission’s future session in New York.
V.D. SHARMA (India), focusing on “Identification of customary international law”, said he agreed with draft conclusion 8 that the relevant practice must be general or sufficiently widespread and representative as well as consistent. Though universal participation was not required, it was important for participating States to represent various geographical regions. They should be particularly involved in the relevant activity or have the opportunity or possibility of applying the rule.
He also said he supported draft Conclusion 9 that the general practice be accepted as law or that the practice in question be undertaken with a sense of legal right or obligation. Agreeing in principle with the value of government legal opinions as evidence of acceptance as law in draft conclusion 10, he added that it might be difficult to identify them, as many countries did not publish law officers’ legal opinions.
As for draft conclusion 11 on the significance of treaties, he said all treaty provisions were not equally relevant as evidence of rules of customary international law. Only fundamental norm-creating treaty provisions could generate such rules. Strong opposition to a particular treaty could be a factor needing consideration while identifying customary international law. In addition, he voiced his support for the provision under draft conclusion 12 that a resolution by an international organization or an intergovernmental conference could not create a rule of customary international law.
JÖRG POLAKIEWICZ, the representative for the Council of Europe, said that draft conclusions 6 and 12 addressing “Identification of customary international law,” referred to the resolutions of international organizations and intergovernmental conferences. That practice could be useful to a discussion of customary international law.
Turning to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties,” he noted, in particular to draft conclusion 13, that the Council had long experience with expert treaty bodies, and its contributions to the interpretation of treaties were of great importance.
On “Other decisions,” he welcomed the decision of the Commission to include the topic of “Settlement of disputes to which international organizations are parties.” Taking into account the Council’s existing work in that field, he said that disputes of a private legal character, by or against an international organization, should be included.
FEDERICA DU PASQUIER, representative for the International Committee of the Red Cross (ICRC), on the topic of “Protection of persons in the event of disasters,” said that recent situations had illustrated the serious humanitarian consequences of disasters and the necessity of consolidating the legal framework governing the protection of persons when they occurred.
While welcoming the draft articles, she also said that it was crucial that those texts not contradict international humanitarian law rules. That objective could only be achieved by expressly excluding situations of armed conflict, including so-called “complex” emergencies, from the scope of application of the draft articles. The Commission’s revised approach did not fully address those concerns.
On the topic of “Identification of customary international law,” she noted that in 2005 the ICRC had published a study on customary international humanitarian law based on almost 10 years of research. She said she was pleased that the considerations underlying the customary international humanitarian law study were generally in line with the approach taken by the Commission.
DANIELLE LARRABEE, representative for the International Federation of Red Cross and Red Crescent Societies (IFRC), said that managing international assistance operations had become increasingly complex. The absence of specific domestic legal frameworks to manage such operations often led to ad-hoc approaches that hurt the quality of relief. Since 2007, with support from the Federation and its member National Red Cross and Red Crescent Societies, 24 countries had adopted new laws or regulations for managing international assistance. However, many States remained insufficiently prepared.
The ILC’s proposal that States consider developing a new global legal framework was very welcome, she continued. The draft articles had many strong elements and could have a positive impact if adopted in the form of a framework treaty. Nonetheless, the text could also still be strengthened in further negotiation to become more operational. She voiced hope that Member States would consider the draft articles as the starting point for a new treaty. However, if this was not the preferred option, it would be critical to find alternative options so that future disasters did not find States underprepared.
EDUARDO VALENCIA OSPINA, Special Rapporteur on “Protection of persons in the event of disasters,” commended the rich debate in the Sixth Committee, especially on the topic for which he was responsible. Noting that the draft articles adopted by the Commission reflected the views of over one hundred Member States, he added that the current document was one of the “most satisfying achievements” in his long career dealing with judicial issues at the United Nations. It was now for the General Assembly to take a decision on whether the draft articles should be developed into a convention.
MICHAEL WOOD, Special Rapporteur on the “Identification of customary international law,” said Sixth Committee reactions to the Commission’s output were essential and studied with the greatest attention by the Commission. The Commission had requested the Codification Division to look at ways and means of making the evidence for international customary law more available. The Secretariat had sent questionnaires to Member, observer States and other entities in the United Nations and General Assembly. The aim of the questionnaire was to collect data on any information that was not currently publicly obtainable, but could be made so if resources were available.
GEORG NOLTE, Special Rapporteur on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties,” stated that the responses and comments from delegates would be helpful for the second reading of the draft conclusions on that topic.
Introduction to Cluster II
PEDRO COMISSÁRIO AFONSO, Chairperson of the International Law Commission (ILC), introduced the second cluster of topics from that body’s report, giving an overview on the Commission’s work on “Crimes against humanity”, “Protection of the atmosphere” and “Jus cogens”.
Addressing “Crimes against humanity,” he pointed out that the six new draft articles addressed such matters as “criminalization under national law,” which set forth measures that each State must take, under its criminal law, to ensure that crimes against humanity constituted offences, and to preclude any statute of limitation and provide for appropriate penalties.
Of the draft article on the “establishment of national jurisdiction,” he underscored that each State must establish jurisdiction over crimes against humanity in certain cases, such as when the offence occurred in the State’s territory, when the alleged offender was a national of the State, or when the victim was a national. It also addressed cases where the alleged offender was present in a territory and the State did not extradite or surrender the person. In that event, the State would nevertheless be required to established jurisdiction. That obligation helped to prevent an alleged offender from seeking refuge in a State that had no connection to the offence.
Turning to “Protection of the atmosphere,” he noted that it highlighted the obligation of States to prevent atmospheric pollution and mitigate atmospheric degradation, as well as the requirement to due diligence and environmental impact assessment. The Commission had provisionally adopted guidelines 3 to 7 in 2016, as well as a preambular paragraph and commentaries.
He went on to say that draft guideline 3 on the “Obligation to protect the atmosphere” was central to the draft guidelines, and was based on principle 21 of the Stockholm Declaration and principle 2 of the 1992 Rio Declaration on Environment and Development. The important question of “environmental impact assessment” was at the heart of draft guideline 4, which notes the obligation of States to put in place legislative, regulatory and other measures for an environmental impact assessment to be conducted with respect to proposed activities.
Finally, on “Jus cogens”, he noted that the report of the Special Rapporteur on that topic traced the historical evolution of jus cogens, discussed its legal nature and proposed three draft conclusions. While those draft conclusions were still with the Drafting Committee, the Chairman of that body had presented an interim report on the draft conclusions it had provisionally adopted.
Providing a general overview of the debate in the Commission on that topic, he said that while some Commission members had preferred to limit the scope of the topic to the law of treaties, others had maintained that the topic extended to other areas of international law, such as the responsibility of States for internationally wrongful acts.
He noted that the Special Rapporteur had advised against developing an illustrative list of norms that had acquired the status of jus cogens, adding that the Commission had further discussed the possible existence of regional jus cogens. Some members had categorically rejected that possibility, while others pointed to examples in which regional institutions, such as the Inter-American Commission on Human Rights, had referred to regional jus cogens. The Commission also discussed the incompatibility of the notion of the persistent objector with jus cogens norms.
Statements on Cluster II
LUCIO GUSSETTI, representative for the European Union, said in regards to “Protection of the atmosphere” that the founding treaties of the Union identified the protection of the environment as one of its main missions. That was also evident in the fruitful negotiations on the Paris Agreement on Climate Change. Welcoming the work of the ILC on the matter, he added that in draft guideline 2 concerning scope, it was necessary to spell out the kind of activities involved, including precursor activities.
The current wordings didn’t enable the Committee to assess whether it was intended to include all double-impact substances, he continued. Stressing that further clarification would be appreciated regarding guideline 2, he added that draft guidelines should also spell out how to measure if any activity would have a significant adverse impact on the protection of atmosphere. The European Union and its twenty-eight members were committed to “taking actual steps” to protect the environment, she stated, adding that she hoped to find a similar commitment within the international community.
HELGA HAUKSDOTTIR (Iceland), also speaking for the Nordic Countries (Denmark, Finland, Norway and Sweden), said that with regards to “Crimes against humanity,” the list of “accessorial” modes of responsibility did not explicitly mention conspiracy or incitement. The formulation should not be interpreted as being narrower than the modes of responsibility as contained in the Rome Statute or in many national criminal codes.
On the establishment of national jurisdiction in draft article 6, she said that the commentary noted that international instruments had sought to encourage States to establish a relatively wide range of jurisdictional bases under national law, which was instrumental for eliminating the risk of impunity. In her region, Nordic countries generally had “active personality jurisdiction” over not only Stateless persons resident in their countries, but also over resident foreign nationals.
She went on to say that draft article 6 together with draft article 9, paragraph 1, set out the obligation to extradite or prosecute (aut dedere aut judicare), and that national courts needed to be provided jurisdiction to try the alleged offender if he or she was not extradited or surrendered. Under international law, crimes against humanity were widely seen as crimes subject to universal jurisdiction. A specific reference to universal jurisdiction should be added at the end of draft article 6, paragraph 3. Underscoring due process considerations, she said that the draft article should draw inspiration from article 77 of the Rome Statute, which did not include the death penalty as applicable for genocide, crimes against humanity and war crimes.
Turning to “Protection of the Atmosphere” and the proposed new guideline 7, she emphasized prudence and caution before undertaking any activities aimed at intentional large-scale modification of the atmosphere, especially with the Paris Agreement soon to enter force. She expressed hope that the guidelines would bring added value to the environmental law regime without duplication.
With regards to “Jus cogens”, she said it was probably not advisable to seek to elaborate a list of jus cogens norms, which could have a potentially negative impact on the status of equally important norms not included in such a list. The concept of regional jus cogens norms was difficult to reconcile with the universal and unconditional character normally ascribed to jus cogens.
Furthermore, she questioned the necessity of referring to “the values of the international community” in draft conclusion 3 paragraph 2, or any other attempt at a definition in substance, as jus cogens represented norms accepted by the whole international community. Although there was general support from the Commission for the elaboration of conclusions, the topic would be best dealt with by the Commission through a conceptual and analytic approach rather than with a view to elaborating a new normative framework for States.
TANIERIS DIÉGUEZ LA O (Cuba) said with regard to “Crimes against humanity” that she appreciated the draft articles on a topic of such importance.
On “Protection of the atmosphere” she highlighted her satisfaction with the study and codification of that topic, noting that it would be very helpful if the Commission could study the impact on the environment from all types of weapons, especially nuclear weapons, their development, stockpiling and their use.
Turning to the “Provisional application of treaties,” she said that work should comply with the Vienna Convention on the Law of Treaties, and that the provisional application of treaties should not be abused.
ROBERTO BALZARETTI (Switzerland), addressing “Crimes against humanity”, said he supported draft article 5 calling on States to define in their national legislation different types of acts constituting crimes against humanity and take measures establishing criminal responsibility of hierarchical superiors. That article should also include an express mention of the non-applicability of statutory limitations to such crimes. In addition, he welcomed article 6, paragraph 1, on national jurisdiction, which broadly defined the scope of such jurisdiction to include not only territorial but also active and passive personal jurisdiction. Paragraphs 2 and 3 of the draft were similar in calling for establishment of jurisdiction based on the presence of the alleged offender in a State’s territory.
Turning to “jus cogens”, he said peremptory norms had been part of international law for a considerable period of time. There remained a need to further clarify the concept of jus cogens. He welcomed the future programme of work proposed by the Special Rapporteur, including his suggestion that the second report be dedicated to rules on the identification of jus cogens norms and that the next step be consideration of the legal consequences of jus cogens. He further welcomed a decision by the Commission to prepare an illustrative list of norms that had already acquired the status of jus cogens.
PETR VALEK (Czech Republic), speaking on “Crimes against humanity” said that the provisions dealing with criminalization under national law, investigation, aut dedere aut judicare, and fair treatment of the alleged offender reflected and built upon current international law framework. The provision in draft article 5, on liability of legal persons for crimes against humanity, provided States with considerable flexibility in deciding whether to adopt such a measure. However, several relevant conventions in that area did not provide for any liability of legal persons. Therefore, the Commission should study that issue in more detail, taking into account the specific context, including the organizational policy element contained in the definition of those crimes.
Addressing “Protection of atmosphere,” he said that currently, international legal aspects of that issue seemed to be “rather a corollary than the hard core of the problem.” The Special Rapporteur’s intention to deal with the question of the interrelationship between what he qualified as the “law of the atmosphere” and the law of the sea, international trade and investment law, and international human rights law, was ambitious. He questioned how the concepts underlying guidelines 3 to 7, which had been developed primarily for the purpose of transboundary impacts of harmful activities, could properly operate on a global scale.
Turning to “Jus cogens”, he agreed with the methodological approach taken by the Commission, underscoring that the work should be based on both State and judicial practice, and supplemented by scholarly writings. The analytical study should be based on the definitions contained in the Vienna Convention. Furthermore, while he was skeptical about providing any list of jus cogens norms, he noted that the Commission, together with the Secretariat, could gather relevant information on the use of the concept of jus cogens in the recent practice of States and international courts.
IAIN MACLEOD (United Kingdom), in regards to “Crimes against humanity”, said there was currently no general multilateral framework governing that issue. A future convention would need to complement, rather than compete with, the Rome Statute by facilitating national prosecutions and thereby strengthening the complementary provisions of that Statute. As it was important that a future convention be widely ratified, he urged that the draft be kept simple, along the model of earlier aut dedere aut judicare conventions.
Turning to “Protection of the atmosphere,” he welcomed the inclusion of a preamble that recognized the boundaries of the Commission’s work in relation to political negotiations on climate change, ozone-depleting substances and long-range transboundary air pollution, as well as confirmation that the work would not seek to fill gaps in international regimes or introduce new rules or principles.
On “Jus cogens”, he said that the Commission could make a useful contribution to the clarification of international law if it confined its parameters to methodology in explaining how to identify pre-existing jus cogens and the consequences of such identification. He said that he would not be against the development of an illustrative, non-exhaustive list of pre-existing jus cogens, provided that list did not detract from the principal focus of work. Draft conclusions were the most appropriate outcome for work on that topic, and could be of significant practical assistance, particularly to domestic courts.
RÉKA VARGA (Hungary), regarding ‘Crimes against humanity”, said that since crimes against humanity still occurred, strong legal measures were needed, adding her support for the Commission to formulate draft articles that might ultimately form the basis of a convention that would help fight impunity. Draft article 5 was the crucial part of such a future convention. It could be examined whether punishment at national level was possible based solely on international law; the Hungarian Constitutional Court had held that international criminal law serves as a basis for prosecution of war crimes and crimes against humanity before national courts. On the important question of responsibility of legal persons, Hungary, like many States, did not recognize criminal liability of legal persons, and it remained to be discussed whether the existence of a paragraph on liability of legal persons had any effect on the general aim of preventing and punishing crimes against humanity.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said that the role of the ILC had been viewed by States from two different perspectives: lex ferenda and lex lata. A major issue was the duration of immunity. Questions could be raised if a Head of State or Government granted him/herself continual titles to extend this immunity. When it came to the relationship between international norms on immunity and international norms on prosecuting gross violations of human rights, the latter should be regarded as a limit to immunity. The Commission needed to take into account developments that had occurred in international criminal law in recent decades, especially the exceptions to immunity.
JIHOON LEE (Republic of Korea), said that he supported the insertion of the preambular paragraph in the draft guidelines concerning “Protection of the atmosphere.” However, he noted that he was not convinced whether it was possible to make a clear distinction between atmospheric pollution and atmospheric degradation, notwithstanding explanations such as the one provided in the commentary to draft guideline 3. Turning to draft guideline 6, he noted the terms “sustainable utilization” and “equitable utilization”, saying that it might be possible to apply the previous work of the Commission regarding aquifers to the current topic of atmosphere.
Turning to “Jus cogens”, he voiced support for the Commission’s approach to the topic in the form of draft conclusions. Stressing that the scope of the study was not limited to the study of treaties, he said that States’ responsibility could not be ruled out in that examination. Furthermore, observing the divergent opinions on the list of jus cogens, he said that without some kind of list, the draft conclusions would be less effective.
XU HONG (China) said of “Crimes against humanity” that judging from deliberations at the Sixth Committee in 2015, it had been apparent that Member States had not reached a wide consensus regarding the elaboration of a convention. He underscored that draft article 5 stipulated that States should legislate to list crimes against humanity as offences under their criminal codes. However, he was of the view that States should be given “certain room for autonomy in decisions” with regard to legislation.
Turning to “Jus cogens,” he noted that, as the Commission was deliberating on the subject for the first time, the work on that topic should focus on clarifying the meaning of the basic elements of the principle, with the emphasis on codifying existing laws rather than drafting a new law. He also underscored that it was not suitable to prepare a list or annex related to the rules of jus cogens. Rather, the correct approach would be to collect and study State practices as they related to the concept.
With regards to “Protection of the atmosphere,” he said that it was a common issue currently facing humanity and involved politics, law and science. The Commission should fully realize the complexity of the issue and respect the existing mechanisms and efforts.
On “Immunity of State officials from foreign criminal jurisdiction,” he said he supported the conclusion of the report that there was no exception in respect of immunity ratione personae. He did not support the three exceptions to immunity ratione personae posited by the Special Rapporteur, which were serious international crimes, crimes that caused harm to persons or property in the territory of the forum State, and crimes of corruption.
Addressing “Protection of the environment in relation to armed conflicts,” he said he supported the continued use in the report of the three-phase approach of before, during and after conflict. He also noted that the report relied too much on legislative practices and regulations but lacked the backing of sound analysis.
Regarding “Provisional application of treaties,” he said that he saw both connection and distinction between the principle of pacta sunt servanda and the provisional application of treaties, which could cause them to clash in practice. A solution should be based on balance between the provisional application of treaties and domestic law.