Sixth Committee Delegates Call for More Clarity on Peremptory Norms, Protecting Environment in Armed Conflict, as International Law Commission Review Ends

GA/L/3560
1 November 2017
Seventy-second Session, 26th Meeting (AM)

Sixth Committee Delegates Call for More Clarity on Peremptory Norms, Protecting Environment in Armed Conflict, as International Law Commission Review Ends

As the Sixth Committee (Legal) concluded its debate on the third and final cluster of topics from the International Law Commission report today, delegates called for further clarification regarding the topic, “Protection of the environment in relation to armed conflicts”, as well as on “Peremptory norms of general international law”.

Romania’s representative, tackling “Protection of the environment in relation to armed conflicts”, underscored the particular importance of considering special vulnerable categories.  Damage to the environment during armed conflict had consequences, for example, on people who depended on agriculture on that territory, regardless if they were not indigenous people.  To remedy that ambiguity, the Commission could consider a statement that would be aimed at protecting people who had a particularly close connection to the environment in the territories in which they lived.

Viet Nam’s delegate emphasized that, no matter what the belligerents’ intentions were, armed conflict had grave and lasting impacts on both the population and the ecosystem, something his country had experienced first-hand and knew all too well.  Pointing out that the effects of war were still very clearly felt in Viet Nam even decades later, he said that the Commission’s research should be complementary with existing international law, particularly the Geneva Convention.

The United States’ representative was among those who highlighted areas of concern, particularly on the attention paid to addressing the concurrent application of bodies of law, other than international humanitarian law.  He pointed out that humanitarian law was the lex specialis in situations of armed conflict.  Rules contained in other bodies of law should be considered in that context on a case‑by‑case basis, he said.

Similarly, the Netherlands’ delegate cautioned the Commission from redefining the recognized existing rules of international humanitarian law with regard to the topic.  The purpose of the Commission’s work must be to clarify the existing rules and principles of international environmental law to armed conflicts, she said.

Belarus’s representative, commenting on “Peremptory norms of general international law”, highlighted the necessity of legal clarity on the issue of jus cogens.  There were legal implications of qualifying a norm as a jus cogens norm.  In addition, given the criteria of article 53 of the Vienna Convention on the Law of Treaties, regional norms were only of importance for those States who had agreed upon them.

The United Kingdom’s delegate echoed those sentiments, while also noting that the Commission’s discussions on the subject were an opportunity to provide clarity.  That was particularly vital, given it had the potential to influence the way in which the international community could regulate its conduct for years to come, as well as divide States.  The need to secure consensus on that work was therefore essential.

Meanwhile, Iran’s representative drew attention to the relationship between jus cogens and the obligations of the United Nations Charter.  Highlighting Article 103 of the Charter, she affirmed that, in the event of a conflict between the obligations of the Charter and those of international agreements, those under the Charter would prevail.  However, in the event of a conflict between norms of jus cogens and Charter obligations, she stressed that jus cogens was superior.

As the session ended, Georg Nolte, Chair of the International Law Commission, congratulated delegates on concluding their consideration of the Commission’s report, adding that he had found their debate particularly rich.  Their words would not only invigorate the work of the Commission but encourage it to take a fresh approach, he said.

Also speaking today were representatives of Australia, Argentina, Slovakia, Israel, Thailand, Germany, Czech Republic, Lebanon, Republic of Korea, Turkey, Malaysia, El Salvador, Japan and Malawi.

The Sixth Committee will next meet at 10 a.m. on Thursday, 2 November, to take up the Report of the Committee on Relations with the Host Country.

Statements on Cluster III

CARRIE MCDOUGALL (Australia), speaking on “Peremptory norms of general international law” (jus cogens), said she welcomed the consideration of proposed draft conclusions 4 through 9 on the identification of peremptory norms and the accompanying commentaries.  The draft conclusions provided a useful framework to assist in identifying such norms and their content.  The practical approach of the conclusions was necessary to reflect the dynamic nature of the formation, development, acceptance and recognition of jus cogens by States under general international law.

She also said that she supported, in principle, the requirement of evidence underpinning whether a norm was accepted and recognized as jus cogens.  That requirement was included in, for example, draft conclusion 6(2) and previously in draft conclusions 8(2) and 9.  However, there might be methodological shortfalls with that approach.  That was especially the case if only limited international practice existed to draw on to identify the degree of acceptance and recognition of a specific norm by States.

MARK A. SIMONOFF (United States), addressing “Peremptory norms of general international law” (jus cogens), said that a better understanding of that topic could contribute to an understanding of human rights law.  However, it was unclear if there was sufficient international practice on important questions, such as how a norm attained jus cogens status and the legal impact of such status vis‑à‑vis other rules of international and domestic law.  On paragraph 2 of draft conclusion 5, he noted that he was not aware of any examples of peremptory norms that were based on general principles of law.  Therefore, that reference to such general principles should be deleted or the commentary should explain that it had not been established that such principles could ever actually be a basis for peremptory norms of international law.

Turning to “Succession of States in respect of State responsibility”, he said that while the Commission’s work on that topic might lead to greater clarity in that area of law, he was not confident that the topic would enjoy broad acceptance or interest from States, in view of the small number of States that had ratified the 1978 Vienna Convention on Succession of States in respect of Treaties and the 1983 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts.  The issues raised by the topic were complex, and careful and thoughtful consideration by Governments would be required as the Commission continued to develop the draft articles.

On “Protection of the environment in relation to armed conflicts”, he noted areas of concern from the proposed draft principles that emerged from the International Law Commission’s (ILC) Drafting Committee in August 2016, and voiced hope that the new Special Rapporteur would take those into account.  On the general scope of the project, there was concern regarding the interest and attention paid to addressing the concurrent application of bodies of law other than international humanitarian law during armed conflict.  International humanitarian law was the lex specialis in situations of armed conflict, and the extent to which rules contained in other bodies of law might apply during armed conflict should be considered on a case‑by‑case basis.

JOSÉ LUIS FERNANDEZ VALONI (Argentina), on “Peremptory norms of general international law” (jus cogens), focused on the criteria for identifying jus cogens.  He noted that the clear link between customary international law and jus cogens was also reaffirmed in national and international jurisprudence, including that of the Supreme Court of his country.  Regarding the second criteria, he pointed out that the practices of non‑State agents might contribute to a further assessment of the degree of acceptance of a peremptory norm.  The Commission should also take into account the status of ratification of various treaties, as well as their reservations about different provisions, as also conveying the consent or lack thereof by States.  A better understanding of jus cogens norms could also impact issues such as extradition and universal jurisdiction, he said.

Also commenting on “Crimes against humanity”, he congratulated the Commission on the adoption of the draft articles and noted that his delegation would be sending additional comments.  Since the articles were based on various international instruments including the Rome Statute, it should be possible to make headway, he said, highlighting as a positive aspect the decision to include principles such aut dedere aut judicare.

PETER NAGY (Slovakia), commenting on the topic of “Peremptory norms of general international law” (jus cogens), said that he had continuously expressed interest in that matter due to the fact that it enjoyed both great importance and sensitivity within the international community.  The criteria for their identification deserved particular attention, noting his delegation’s consideration of both the criteria and the process by which those norms were to be identified.  He underlined that the requirement for acceptance and recognition played a crucial role.  In that sense, it was essential to precise how the so‑called opinio juris cogentis was to be achieved in the community of States.  He also expressed doubts on whether draft conclusions 6 through 9 fully responded to that ambition.  Rather, they left room for undesirable uncertainty on how that opinion should be assessed.

ŞTEFAN RACOVIŢĂ (Romania), addressing “Peremptory norms of general international law” (jus cogens), said he agreed with the two-criteria approach and concurred that a modification by a subsequent norm or jus cogens was not in itself an independent criterion for the identification of such a norm.  The text could be streamlined by dispensing with draft conclusion 6 since the thesis in the first paragraph followed from the definition set out in draft conclusion 4.  Expressing reservations about draft conclusion 7 according to which acceptance and recognition by a large majority of States was sufficient for the identification of a norm as a jus cogens norm, he said that such norms must embody peremptory obligations binding upon every State.

Turning to “Succession of States in respect of State responsibility”, he said that the debate had shown that there was no one normative framework of relevance for the subject matter and that there was also limited State practice, even more so from the point of view of coherence.  There was a need to properly assess various situations pertinent to State succession in order to avoid jumping to the assertion of succession thesis as the general rule.  Expressing reluctance to engage in the development of law on the matter, he added that the need for flexibility and the subsidiary nature of the rules on State succession in respect of State responsibility required a less formal instrument than that of a convention.

On “Protection of the environment in relation to armed conflicts”, he said there was merit in the recommendations of the Working Group to extend the assessment to matters pertaining to complementarity with other relevant branches of international law, such as international environmental law or protection of the environments in situations of occupation.  While acknowledging the difficulty of inventorying rules applicable to hybrid conflicts and non‑State actors, he noted that they were of certain relevance to the subject.  Regarding the question of special vulnerable categories, he said that damage to the environment during armed conflict had consequences on all people who depended on, for example, agriculture on that territory, even if they were not indigenous people.  The Commission should consider a more general statement aimed at protecting people who had a very close connection to the environment in the territories they inhabited.

Ms. LISELOT EGMOND (Netherlands), speaking on “Peremptory norms of international law”, said that as the debates in the Commission had demonstrated, many elements of jus cogens remained contested; their elucidation was essential for arriving at clear and constructive conclusions.  In that respect, she shared the concern voiced by France’s representative in 2016 with respect to the lack of clarity on that concept and its application, voicing hope that the Commission would continuously evaluate its progress and would not hesitate to return to topics earlier discussed in the light of later conclusions.

Turning to “Succession of States in respect of State responsibility”, she said that, in regards to the proposed outcome document, she was not convinced it should take the form of draft articles with commentaries.  Rather, a set of principles or guidelines would be more appropriate.  With respect to its content, the elaboration of any specific principles or guidelines should be based on the leading principle underlying State succession and responsibility.  That was the principle that no vacuum in terms of State responsibility should emerge in cases of dissolution or in cases of unification, where the original State had disappeared, or in cases of secession, where the predecessor State remained.  The transfer or not of rights or obligations in specific situations should be assessed on a case‑by‑case basis and be addressed in a succession agreement.  She welcomed the suggestion by the Special Rapporteur to stress the priority of the conclusion of agreements between States.

Regarding “Protection of the environment in relation to armed conflicts”, she took note of the statement by the Working Group on the importance of completing the work on that topic.  Recalling the assessments, as expressed in 2014 after consideration of the first preliminary report, she reiterated that the overall purpose of the study would be only to clarify existing rules and principles of international environmental law related to armed conflicts.  She urged the Commission to refrain from redefining the recognized existing rules of international humanitarian law.

BATZION BEN DAVID GERSTMAN (Israel), on “Peremptory norms of general international law” (jus cogen), said there were considerable discrepancies between the principles and terminology used in the draft conclusions when compared with those used to address similar areas in work on identification of customary international law.  Clarification was required on the distinction between criteria for jus cogens in draft conclusion 4 and its descriptive elements in draft conclusion 3.  Regarding draft conclusion 9, the standard of evidence needed to substantiate jus cogens was significantly higher than that to substantiate customary law, which itself was rigorous.  Only treaties with virtually universal adherence could provide evidence of acceptance and it was inappropriate to look to political resolutions of international organizations or judgements of national courts as evidence.  He recommended deleting that element from the draft conclusions.

Turning to “Succession of States in respect of State responsibility”, he questioned whether that topic was needed, given the reality of contemporary States.  The project was in its infancy and it was too early to determine its final form; any final product would be subsidiary in character to agreements between States in the context of a specific succession.  He also noted draft articles 3 and 4 could be redundant, as they simply restated that existing agreements were subject to the accepted principles of international law.  Draft articles 1 and 2 should be referred to the Drafting Committee, but draft articles 3 and 4 should be held for further discussion.

Ms. ELAHEH MOUSAVI-NEJAD (Iran), addressing “Peremptory norms of general international law” (jus cogens), noted that while the criteria for identifying jus cogens was based on the 1969 Vienna Convention, the report was silent on the question of who determined whether the criteria had been met.  Calling for further consideration for developing a list, she said that if such a list were to be eventually developed, the one set out in article 52 of the 1969 Vienna Convention — the prohibition of the threat or use of force — should be at the top, as that article clearly reaffirmed that a treaty was void if its conclusion had been procured by threat or use of force, in violation of the principles of international law.  Regarding the relationship between jus cogens and the obligations in the United Nations Charter, Article 103 of the Charter only affirmed that in the event of a conflict between the obligations under the present Charter and the obligations under any other international agreement, the obligations under the present Charter would prevail.  Therefore, in the event of a conflict between norms of jus cogens and Charter obligations, she stressed, jus cogens remained superior.

Turning to “Succession of States in respect of State responsibility”, she concurred with members of the Commission who had requested the Special Rapporteur produce a more systematic account of the relevant materials, especially with respect to State practice and case law.  Due to the rarity of State practice and limited number of cases on the topic, the conclusion that the rule of non‑succession in respect of State responsibility had changed, seemed far from convincing.  If the Special Rapporteur believed otherwise, “we expect him to provide rich sources of materials and reasoning,” she stressed, noting that States had preferred to settle their disputes regarding succession through bilateral agreements.  The Commission’s work had not yet received widespread endorsement by States; draft articles were a good choice for its final form.

SUN THATHONG (Thailand), on the topic “Peremptory norms of general international law” (jus cogens), welcomed the use of the definition of jus cogens in article 53 of the Vienna Convention on the Law of Treaties, but noted that there was no reference to the customary rule of treaty interpretation as codified in articles 31 and 32.  Thus, interpretation should follow the steps laid out in articles 31 and 32 and ensure that the context of article 53 and the purpose of the Law of Treaties be fully taken into consideration in the Special Rapporteur’s analysis.  Regarding the list of jus cogens, he said that such a list could hinder the development of jus cogens.  Among other comments, he also emphasized that concrete conclusions should not be rushed, particularly in areas where State practice was unclear or limited.  However, the Commission should continue to identify and assess developments in international law pertaining to jus cogens that would most clearly reflect the current intention and practices of all States.

On the “Protection of the environment in relation to armed conflicts”, he said little attention had been given to the prevention and mitigation of damages.  In that context, he expressed interest in the development around the interrelation between international environmental law and international humanitarian law.  He highlighted the need for active engagement with international organizations which would help enhance understanding of the environmental consequences of armed conflicts.  He also encouraged the Commission to continue work on refining the draft principles and draft commentaries in an expeditious manner.

RUSLAN VARANKOV (Belarus), addressing “Peremptory norms of general international law”, noted the serious legal implications of qualifying a norm as a jus cogens norm.  It was time to consider the topic, as its role had grown in interpreting treaties by, inter alia, different judicial bodies.  Legal clarity would minimize misuse.  It was desirable to develop a working definition of general international law.  Based on the criteria given in article 53 of the Vienna Convention on the Law of Treaties, regional norms were only significant for those States who had agreed on that norm.  Referring to the general part of the commentaries, he said he hoped that the Commission would work on the methodology on that matter.  A jus cogens norm reflected fundamental values, and it should be underscored that it was a descriptive characteristic and not a qualifying one.  Leaving the possibility for another interpretation might lead to a negative result.

Turning to “Succession of States in respect of State responsibility”, he voiced support for the main aim of the Commission to identify international law on that matter.  Considerations of the consistency and consent in the Commission showed the benefit of having draft articles and comments on the subject.  In terms of methodology, there should be as much research as possible on existing practice on that matter, he said.

Regarding “Protection of the environment in relation to armed conflicts”, he thanked the Special Rapporteur for her work on that matter.

KERSTIN PUERSCHEL (Germany), commenting on “Peremptory norms of general international law” (jus cogens), said that, despite sharing concerns about the lack of State practice, she appreciated the effort invested by the Special Rapporteur into his thoughtful study of existing State practice.  Agreeing with the general reasoning of draft conclusion 5, she stressed that it must be customary international law and not treaty law or other sources that qualified as general international law, thus forming the basis of jus cogens.  Treaty rules only exceptionally reflected peremptory norms of international law and the draft conclusion must clarify its wording to convey that.  Furthermore, it was not necessary for the Commission to undertake the enormously difficult task of adopting an enumerative list of norms that had acquired jus cogens status, she said, cautioning that it might lead to wrong conclusions being drawn.

KRISTINA HORNACKOVA (Czech Republic), speaking on “Peremptory norms of general international law”, welcomed the criteria for the identification of such norms in line with the 1969 Vienna Convention, adding that norms of jus cogens would only emerge from State consent, as identified by the international community of States as a whole and as peremptory norms.  She therefore supported the draft conclusion 5 paragraph 1, but expressed doubt whether such treaty provisions and general principles of law would serve as a basis for peremptory norms of general international law as stated in paragraph 2.

Offering in‑depth remarks on “Succession of States in respect to State responsibility”, she also said it was time to scrutinize the “old doctrinal dogma” that invoked responsibility for internationally wrongful acts.  There was a difference between the understanding of State responsibility and the underlying concept of the responsibility of States for internationally wrongful acts.  Given that it was generally accepted that the succession of States did not produce a clean slate in international legal relations, she questioned why State succession should wipe out the consequences of an internationally wrongful act.  To that end, she concurred with the preliminary conclusion that contemporary international law did not preclude succession in respect of secondary rights and obligations arising from an internationally wrongful act of the State.  The Special Rapporteur should consider the formulation of a general provision on that matter.

On the “Protection of the environment in relation to armed conflicts”, she said amendments of existing instruments, should they be needed, should be undertaken by the States parties to those instruments, and not by the Commission.  Assuming that the Commission intended to continue work on a set of principles or rules which were already contained in existing legal instruments dealing with protection of the environment and applicable in armed conflicts, she stressed that an explanation of the value of such exercises would be needed.  In particular, she questioned how the compilation of various provisions of existing legal instruments could enhance protection, as purported in draft principle 2.  Similarly, risks arising from selective or incomplete compilation should be considered.

YOUSSEF HITTI (Lebanon), addressing the subject of “Protection of the environment in relation to armed conflicts”, said that he was following the discussions and review of that subject closely.  He welcomed the fact that the topic would continue to be a subject of study, reiterating that there should be further in‑depth discussion on several issues under that topic, including the responsibility for reparations, the principles of proportionality applied to the environmental context, and the protection of the environment in situations of occupation.  He also expressed his full trust in the new Special Rapporteur and would follow with interest all the work of the Commission.

SHIN SEOUNG HO (Republic of Korea), commenting on “Succession of States in respect of State responsibility”, said it was crucial to determine whether general rules on the succession of States existed or not, particularly when types of succession of States were different.  Two approaches could be used.  The first would be to identify, based on the traditional rule of non‑succession, a case where exceptionally the obligations and rights of a predecessor State succeed.  The second would be to depart from the traditional rule of non‑succession and try to find a general rule suitable to various types of succession of States.  He noted that categorizing State succession was not an easy task but urged the international community to carefully consider each type of State succession in future discussions.

RAMIS ŞEN (Turkey), on “Peremptory norms of general international law” (jus cogens), said he remained hesitant about the need for codification or progressive development of the concept.  However, the title used for the Special Rapporteur’s revised proposal in his second report was more consistent with the phrasing of the 1969 Vienna Convention.  On listing examples to illustrate norms, he favoured an approach that addressed the methodology of identifying norms, not listing examples in an annex.  Regarding the draft conclusions, the criteria for jus cogens in draft conclusion 4 was in line with the Vienna Convention.  However, draft number 6 reiterated number 4 and should be deleted or further elaborated.  Paragraph 2 of draft conclusion 7 should be deleted for clarity, the acceptance of the community of States being the relevant factor in the identification of norms of jus cogens.

Turning to “Succession of States in respect of State responsibility”, he said that recent observations have served to confirm concerns about the complexity and immaturity of the subject.  The complexity was due to the topic’s two components, each of which could be either a political or legal matter and could not as yet be generalized or regulated in any particular way.  The Commission’s earlier work on State succession had found little support among States and the rules of the relevant Vienna Conventions were far from being generally accepted as norms.  In the context of the lack of concerted State practice necessary for codification, it was doubtful that progressive development of new norms and codification could be soon achieved.  Similarly, uncertainty also prevailed in the second component on State responsibility for wrongful acts, where fundamental concepts were not defined in international law.  Hence, it was doubtful, for like reasons, that the proposal on default rules could gain broad support.

On the topic, “Protection of the environment in relation to armed conflicts”, he said he would comment only after having analysed the work to be submitted by the new Special Rapporteur.  He underlined, however, the importance of coherence between the new work to be embarked on and work previously accomplished.

STEPHEN H. SMITH (United Kingdom), commenting on “Peremptory norms of general international law”, said the Commission’s discussions were an opportunity to provide clarity and assistance to practitioners.  The Commission’s work on that item had the potential to influence the way in which the international community of States could regulate its conduct for years to come, as well as divide States.  The need to secure consensus on that work was therefore essential.  Giving an in‑depth view on the matter, he also said that draft conclusion 2 did not assist in providing the clarity and technical assistance that would be of the most practical value to States and practitioners.  Regarding the term “fundamental values”, there was a question as to whether jus cogens norms “reflect” or “protect” fundamental rights, which he described as irrelevant.  While the “general theme” was indeed the same, what was actually needed was a precise analysis reflecting the practice of States.

On “Succession of States in relation to State responsibility”, he noted that the Commission’s work was at a very early stage; he would reserve detailed comments until that work was further developed.  As a preliminary observation, however, he noted there was very little in the way of State practice in that area to guide the Commission.  State practice as identified by the Special Rapporteur was highly context-specific and sensitive.  Remarking that it must be viewed in its historical, political and cultural context, he said the Commission must be absolutely clear whether it was setting out lex lata or lex ferenda, noting that “we are clearly in the territory of the latter.”

Turning to “Protection of the environment in relation to armed conflicts”, he said he looked forward to the first report of the new Special Rapporteur in 2018 and emphasized that the Commission should not seek to modify the law of armed conflict.  In addition, while the preparation of non‑binding guidelines or principles could be useful, he also said he was not convinced that there was a need for new treaty provisions in that area.  International law was the lex specialis in that field.

INTAN DIYANA AHAMAD (Malaysia), addressing “Peremptory norms of general international law”, said that further explanation on the use of article 38(1) of the Statute of the International Court of Justice could serve as a basis for determining jus cogens norms of international law.  Further clarification was needed on whether recognition of the whole international community of States would be required.  With regards to draft conclusion 9, the work of expert bodies and scholarly writings as secondary means of identifying norms of general international law as norms of jus cogens must be subjected to recognition of the whole international community of States.  She also said that she looked forward to the Special Rapporteur’s work on the doctrine of persistent objector and the application of jus cogens on a regional or bilateral basis.

Turning to “Protection of the environment in relation to armed conflicts”, she said the question of the final form of the draft principles would be the subject of further consideration.  Such protection should not be viewed exclusively through the lens of the laws of warfare.  Protective elements envisioned for the draft principles should therefore provide an analysis and a clarification of the applicability of, and the relationship between, international humanitarian law, international criminal law, international environmental law, human rights law and, of course, treaty law.  To that end, references in the drafting process must continue to be made, particularly to issues of complementarity with other relevant branches of international law.

NGUYEN NAM DUONG (Viet Nam), on “Peremptory norms of general international law” (jus cogens), said that such norms played an important role in international law and were recognized under the 1969 Vienna Convention as well as the domestic legislations of many States.  His country’s Law on Treaties, adopted in 2016, also recognized peremptory norms of international law, or jus cogens, as a principle to be adhered to in the course of negotiating and entering into international treaties.  However, to date, “it remains unclear on the identification of such norms,” he said, commending the efforts of the Commission in addressing that issue and expressing agreement with draft conclusions 4 and 5.

Turning to “Succession of States in respect of State responsibility”, he said that a wide range of matters needed to be taken into account in the consideration of that complex topic, such as the responsibility towards international organizations and responsibility for acts of wrongdoing that were not necessarily in breach of international law, such as expropriation, requisition, and confiscation.  The principle of non‑succession remained the predominantly applicable principle, he said, noting insufficient State practice and case law to prove otherwise.

On “Protection of the environment in relation to armed conflicts”, he said that armed conflicts, regardless of the intentions of the belligerents, had grave and lasting impacts on not only the population, but also the land, water, air and ecosystem.  His country had experienced first-hand and knew all too well the consequences of armed conflicts on the environment.  The effects of war, despite having taken place decades ago, were still very clearly felt in Viet Nam.  The same was true for all armed conflicts around the world.  Expressing support for the Commission’s continuation on that topic in order to establish State responsibility in dealing with remnants of war, particularly those related to the damages to the environment, he said ILC’s research should be complementary with existing international law, particularly the Geneva Convention.

HECTOR ENRIQUE CELARIE LANDAVERDE (El Salvador), addressing “Peremptory norms of general international law”, underscored the importance of the historic analysis that had taken place since the submission of the first report on jus cogens, which had allowed the identification of aspects of its legal nature.  He noted that in draft articles 5 and 6, the Commission had grouped together criteria that constituted a mechanism for the creation of jus cogens norms.  The regulation of those aspects was of particular relevance, as norms could not be derogated from.  On the terms of the bedrock of jus cogens in draft article 5, he said that it would be useful to reschedule further examination of that matter by the Commission.

On “Succession of States in respect of State responsibility”, he said that he was aware of how complex that issue was, and that, against that backdrop, it was difficult to find acceptable solutions for the entire international community.  One stumbling block was the theory of non‑succession; it was necessary to pursue a critical analysis of that theory.  He shared the view that the best way to regulate that issue was through a draft set of articles.

Turning to “Protection of the environment in relation to armed conflicts”, he underscored the need to not ignore the work already undertaken.  As his delegation had stated before in 2016, the reference to armed conflicts must be general in nature and should not make a distinction between international armed conflicts and non‑international armed conflicts.  The consequences of a conflict on the environment were irreversible in both cases, he said.

YUKI HIROTANI (Japan), speaking on “Peremptory norms of general international law” (jus cogens), said that because jus cogens was a norm of general international law and not a concept confined to the context of treaty law, the scope of the topic need not be limited to treaty law.  Due consideration should be given to issues relating to other fields of law, such as State responsibility.  An illustrative list of jus cogens could be useful if it included the reasons why the Commission considered the listed norms to have acquired jus cogens status.  In preparing such a list, however, proper care should be taken to avoid any misconceptions that the listed norms were being given a special legal status.  It must be clear that the list was illustrative, not exhaustive, and did not prejudice the legal status of norms not included in the list.

Moving on to “Succession of States in respect of State responsibility”, he said there were several types of succession of States, including the transfer of part of the territory of a State, the independence of a State, the unification of States, the separation of parts or parts of the territory of a State, and the dissolution of States.  It was crucial to study State practice in each of those areas.  Presuming the theory of non‑succession, draft article 3 and draft article 4 should focus on exceptional conditions where agreements to succession of States and a unilateral declaration might result in succession of responsibility.  Issues such as liability arising from activities not prohibited by international law, responsibility of international organizations and success of governments should not be touched upon, so as not to overburden the present topic.

NECTON D. MHURA (Malawi), on “Crimes against humanity”, said that the Commission must further study the articles on victims’ right to get reparations, especially the extent to which States should bear the burden of reparations.  It was important to keep in mind the difficulties that might be associated with the discharge of that burden.  His delegation would be sending additional comments, he said.

Turning to “Immunity of State officials from foreign criminal jurisdiction”, he expressed concern about the departure from the established procedure of adopting work by consensus, when it came to article 7, which contained exceptions of crimes to which immunity did not apply.  The fact that it was adopted by a recorded vote was a sign that it merited further study.  Urging the Commission to revisit that article, he said it must exercise caution and not conflate that topic with the scope and application of the principle of universal jurisdiction.

Noting the inclusion of two topics on the future work of the Commission, he said that the “Identification of general principles of international law” would provide guidance to States.  However, in regards to “Evidence before international courts and tribunals”, he pointed out that since each international tribunal had its own rules on evidence, it would be difficult for the Commission to harmonize them.

GEORG NOLTE, Chair of the International Law Commission, congratulated delegates on concluding their consideration on time, adding that he had found their debate particularly rich.  Statements had been numerous and longer than in previous years, paralleling the way the issues on the Commission’s agenda were also increasing.  The Special Rapporteurs, as well as the Secretariat, would be diligently translating the debate into the work of the Commission.  Furthermore, it would enable the Commission to take fresh approaches, especially as it was celebrating its seventieth anniversary next year and thinking about the ways and possibilities of improving its interaction with the Sixth Committee.

For information media. Not an official record.