Print
GA/L/3512
11 November 2015
Seventieth Session, 25th & 26th Meetings (AM & PM)

Concluding Review of International Law Commission Report, Legal Committee Approves Draft Texts on International Trade Law Body, Programme of Assistance

After concluding deliberations on the third and final cluster of topics in the report of the International Law Commission, the Sixth Committee (Legal) today approved without a vote two draft resolutions, the first on the report of the United Nations Commission on International Trade Law (UNCITRAL) and the second on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law.

The draft resolution on UNCITRAL’s report, had the General Assembly, among other things, call on Governments, United Nations bodies, organizations and individuals to make voluntary contributions to the Trust Fund established to provide travel assistance to developing countries, for the purpose of increasing expert representation from those countries at the Commission’s session.  Such contributions would build local expertise and capacities to put in place an enabling environment for business, trade and investment.

By the text on the Programme of Assistance, the Secretary-General would be authorized to carry out in 2016 and in 2017 the activities of the International Law Fellowship Programme, the United Nations Regional Courses in International Law for Africa, for Asia-Pacific and for Latin America and the Caribbean, as well as the United Nations Audiovisual Library of International Law.  Those activities would be financed from the regular budget, as well as from voluntary contributions, when necessary.

The Sixth Committees also concluded its final debate on the third cluster of topics from the report of the International Law Commission, during which many representatives continued to express their wide-ranging views and provide suggestions for the Commission’s future plan of work.

Palau’s representative, on the topic “Protection of the environment in relation to armed conflicts”, said it was important to address the effects of the Second World War on both the atmosphere and on the water.  He urged the Commission to adopt draft principles that reflected the need to protect the maritime environment.

Along those lines, Viet Nam’s representative said the Commission’s future plan of work should consider rehabilitation efforts, as they could have considerable consequences on the complete recovery of war-torn countries.  Obligations should include the provision of humanitarian assistance for the purpose of clearing landmines, toxic chemicals and other remnants of war.

Delegations also continued to underscore the need for clarification on the legal nature of “Provisional application of treaties”, as well as possible manifestations. 

The representative of Canada called attention to the expression of consent, pointing out that according to the Vienna Convention on the Law of Treaties, a State could not invoke internal law as a way to invalidate its consent to be bound by a treaty obligation.  It should be up to each State to ensure that its expression of consent to provisional application was consistent with its internal rules. 

Ireland’s representative also voiced concerns on the matter of consent, noting that there was a need to stress the conceptual distinction between the expression of consent to be bound by a treaty with a view to its entry into force and the provisional application of a treaty for a period preceding its entry into force. 

Debate also tackled the topic “Immunity of State officials from foreign criminal jurisdiction”, seeking to define what constituted an “act performed in an official capacity”.

The representative of Sudan noted the strong link between an “act performed in an official capacity” and the concept of “State official”.  Voicing support for expanding the scope beyond Heads of State, Heads of Government and ministers for foreign affairs, he underscored that the relevant draft articles should cover all official acts performed by representatives of States. 

The concept of immunity ratione materiae also featured prominently in the discussion.  The Russian Federation’s representative urged the Commission to focus on procedural aspects, emphasizing that texts addressing that matter should highlight the applicability to persons enjoying immunity ratione personae or immunity ratione materiae after they had left office.  Failure to do so could lead to questions, such as whether immunity of the troika would be subject to rules developed by the Commission with respect to immunity ratione materiae

Before adjourning the meeting, the Sixth Committee heard an introduction of the draft resolution on the report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization.  

Also speaking today were representatives of Iran, Poland, Japan, Malaysia, United States, Israel, Republic of Korea, Turkey, Switzerland, New Zealand, Mexico, Spain, Kazakhstan, Egypt, Georgia, Austria and Ghana.

The Sixth Committee (Legal) would next meet on Friday, 13 November at 10 a.m. to hear the reports from the Working Groups and to take action on the draft resolution on “Observer status for the Union for the Mediterranean in the General Assembly”.

Background

The Sixth Committee (Legal) today concluded deliberations on the report of the International Law Commission.  It was also took action on two draft resolutions on the United Nations Commission on International Trade Law (UNCITRAL) (document A/C.6/70/L.9) and the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International law (document A.C.6/70/L.10).

For background on the Commission’s report please see Press Release GA/L/3506.

Statements

REZA DEHGHANI (Iran), on the topic “Protection of the environment in relation to armed conflicts”, welcomed the inclusion of “protected zones and areas” and in particular the establishment of nuclear-weapon free zones.  The definition of those zones had been adopted by the General Assembly in 1975 pursuant to the proposal made by his country in 1974 to create such a zone in the Middle East.  Unfortunately, due consideration on the matter had not been given due to “political pretext”.  His country had suffered damages to the environment as a result of attacks to offshore installations and pipelines situated on the continental shelf in the Persian Gulf. 

He went on to say that the list provided in Additional Protocol I to the Geneva Conventions, paragraph 56 and Additional Protocol II to the Geneva Conventions, paragraph 15 did not include oil and gas platforms.  In the event of an attack, the release of dangerous forces would result in severe losses to the environment.  Those installations must be protected during armed conflict, in conformity with Security Council resolutions that condemned targeting of oil installations.  In recent years, Iran had suffered from the long-term effects of armed conflicts in the region due to a highly polluted haze, demonstrating the real adverse effects of armed conflicts long after the end of hostile activity.

Turning to the topic “Immunity of State officials from foreign criminal jurisdiction”, he pointed out the close relationship between the concept “act performed in an official capacity” and the concept of State official.  The concept of State official consisted of all individuals who were in the position to exercise State function in all forms and represent States or act on behalf of States.  Thus, the concept of “act performed in an official capacity” should comprise all functions by the State official in their official capacity.  The “act performed” should be regarded as an official “governmental” act, without distinction between the capacities in which one acted. 

National case law and practice of national courts could not be given the same weight as the jurisprudence of international courts and tribunals, he continued.  The review of those bodies’ judgements showed that the criminal nature of the acts could not constitute sufficient basis to exclude them from being an official act and consequently be excluded from the scope of immunity.  All such activities derived from the exercise of governmental authority should be subject to immunity.  Acts such as money laundering, corruption and murder, exceeded the limits of official function and governmental authority and were therefore not covered by immunity.  That could be considered in the limitations and exceptions to “act performed in and official capacity” in the Special Rapporteur’s future reports. 

Turning to the topic “Provisional application of treaties”, he said he agreed that, while the primary beneficiary of provisional application was the treaty itself, since it could be applied without being in force, the more important beneficiaries were the negotiating States who could partake in the provisional application and benefit from the rights stipulated in the treaty.  However, the Commission’s work was “fraught with difficulties” as only a limited number of States had regulated provisional application of treaties in their domestic laws or constitutions.  In his country’s constitution, there was no provision concerning the provisional application of treaties.  Moreover, the concept was limited to multilateral instruments and could not be applied in bilateral treaties.

WŁADYSŁAW CZAPLIŃSKI (Poland) said important international law questions were raised by the topic “Protection of the environment in relation to armed conflicts”, as it attempted to find a compromise between international environmental law and international humanitarian law.  A proper balance was also needed between safeguarding the legitimate rights of States under the law of armed conflict and the protection of the environment.

Turning to “Immunity of State officials from foreign criminal jurisdiction”, he voiced his reservations with regard to immunity ratione personae and immunity ratione materiae.  Terminological confusion was clearly visible in draft article 6.  The terms “personal immunity” to denote immunity ratione personae and “functional immunity” for immunity rationae materiae were better suited.  There should be elaboration in the draft provisions on the various aspects of personal and functional immunities, and provisions on the temporal scope of immunity should establish a rule of permanency of immunity from criminal jurisdiction regarding acts performed in an official capacity.

The topic “Provisional application of treaties” was one of utmost practical importance, he stressed, adding that the preparation of guidelines was the appropriate way to address it.  The three draft guidelines provisionally adopted by the Drafting Committee were solidly grounded on article 25 of the Vienna Convention on the Law of Treaties, but some of the draft guidelines from the Special Rapporteur gave rise to some concerns. 

For example, he continued, draft guideline 1 could be in contradiction with article 27 of the Vienna Convention that states that a party could not invoke internal law as justification for failing to perform a treaty.  Furthermore, draft guideline 4 should be substantiated.  Work on the provisional application of treaties would have greater practical value if the Commission identified model clauses used for provisional application, with commentary to state their respective advantages and disadvantages.  He also said he would be especially interested in the Commission’s evaluation of reservations to particular treaty clauses – something that was quite common in practice.

CALEB OTTO (Palau) on the topic “Protection of the environment in relation to armed conflicts”, underscored that addressing the effects of the Second World War on both the atmosphere and on the water was of particular importance to his country as they related to health, food security and sustainable development.  He recalled article 71 of the Small Island Developing States Accelerated Modalities of Action (Samoa Pathway), which referred to the need for enhanced technical cooperation programmes in the management of hazardous waste.  He urged the Commission and the Rapporteur to address issues identified in that article in the next report and encouraged the Commission to adopt draft principles reflecting the need to protect the maritime environment.  In addition, he expressed appreciation for the work of Australia in his country to remove unexploded ordinance from the Second World War, some of which were under water.

TOMOYUKI HANAMI (Japan) on the topic “Protection of the environment in relation to armed conflicts” said the Commission should clarify legal norms based on existing provisions of the law of armed conflict.  Disrupting the balance between military necessity and humanitarian consideration by creating new norms could bring about a higher risk of incompliance with the law of armed conflict.  With respect to draft principle II, which related to protected zones, the Commission should further discuss the significance of establishing such a new procedure even though the basic norm remained unchanged.  While the analysis in the second report was mostly consistent with the existing law of armed conflict, the scope of the project should focus on the protection of natural environment during armed conflict.  The Commission should also carry out its study to clarify detailed norms on the topic based on analysis of State practice.

Turning to the topic “Immunity of State officials from foreign criminal jurisdiction”, he said the resulting products from the Commission’s last two sessions provided a “rather vague” picture as to the exact scope of immunity ratione materiae.  Recalling the Commission’s work on that scope both last and this year, he said that, if read together, those draft articles suggested that immunity ratione materiae captured almost all acts performed by State officials, regardless of whether they were senior officials, lower-rank officials, or in some cases, private contractors as “de facto” officials.  In that regard, the current definition of “acts performed in an official capacity” lacked clarity as to its limits, and if left unlimited, ran the risk of abuse with respect to the notion of immunity ratione materiae

He expressed hope that the commentary to be considered and adopted next year would provide clarity on some of the questions resulting from the current draft articles, including, among others, what kind of acts would qualify as exercise of State authority, and if the exercise of State authority by State officials on a foreign territory was not based on the consent of the territorial State, should such act be protected by immunity.  Underscoring the importance of a clear and well-defined scope of immunity ratione materiae, he said that while Member States tended to lean toward the perspective of the beneficiaries of immunity, there was equal value in seeing the perspective of the State receiving foreign State officials.

NGUYEN THI HONG QUYEN (Viet Nam) on the topic “Protection of the environment in relation to armed conflicts”, said the requirement of an environmental impact assessment prior to deploying “weaponry in battlefield” was an important element.  It was also appropriate to address international armed conflicts and not to include non-international armed conflicts in the scope of the topic.  The information provided by the Special Rapporteur had not indicated sufficient general practice of States regarding the obligation to protect the environment in relation to non-international armed conflicts.  On the future plan of work, particular attention should be paid to rehabilitation efforts as they could have considerable consequences on the complete recovery of war-torn countries.  Obligations should include the provision of humanitarian assistance for the purpose of clearing landmines, toxic chemicals and other remnants of war.

Turning to the topic “Immunity of State officials from foreign criminal jurisdiction”, she expressed agreement with several Commission members that it was excessive and unnecessary to establish a link between the act and its criminal nature; the criminal nature was to be of descriptive importance only and the question of immunity was a procedural one.  She welcomed the Drafting Committee’s clarification in the commentaries that the criminal nature of an act did not, in principle, disqualify it as an official act.  All acts performed in the exercise of State authority, State functions and sovereignty should enjoy immunity ratione materiae.  A focus on the “thorny” questions of exceptions and limitations to jurisdictional immunity of State officials together with procedural issues, as well as a broad survey of State practice and case law of various regional and international tribunals would be welcomed.

On the topic “Provisional application of treaties”, she said she agreed that the provisional application of treaties created rights and obligations and that the treaty was subject to the pacta sunt servanda rule in article 26 of the Vienna Convention.  Underscoring that provisional application could be used to bypass constitutional constraints, particularly when parliamentary ratification was required, she said it was important to further elaborate on the nuances of “legal effects” as presented in draft guideline 4.  On the form of the project’s outcome, she welcomed the Commission’s draft guidelines, adding that the two Vienna Conventions already provided sufficient legal basis for the provisional application of treaties. 

EDORA AHMAD (Malaysia) on “Protection of the environment in relation to armed conflict”, said it was impossible for a definition of the environment, borrowed from an instrument dealing with peacetime situations, to be transposed to situations of armed conflict.  Alternative definitions should be proposed.  Moreover, there was no urgent need to conclusively define the terms “armed conflict” and “environment” at such an early stage.  Debate on the meaning of “armed conflict” should be preceded by a decision about which actors the intended draft principles would cover.  It was also premature to consider draft principles 1 through 5.  Upcoming commentaries on those draft principles would assist delegates in understanding the issues involved.

On the topic “Immunity of State officials from foreign criminal jurisdiction”, he said further clarification was required on the question of how far a State could determine the range of actions that constituted acts performed in an official capacity.  It was also imperative for immunity ratione materiae to be defined in order to determine under what circumstances State officials would be granted immunity from foreign criminal jurisdictions.  The basic characteristic of immunity ratione materiae was granted to all State officials, and not time limited, he said, adding that he also looked forward to commentaries on the draft articles to enable a better understanding of their purpose and intent.

Turning to “Provisional application of treaties”, he said the draft guidelines had to provide a clear understanding and interpretation while taking into account the internal laws of States.  With regard to draft guideline 2, agreement for provisional application had to be expressly provided in a treaty or established by means of a separate agreement.  Both would have level effect.  With a few exceptions, resolutions adopted at international conferences were normally not binding, and therefore it was unacceptable for such resolutions to be given the same legal effect as a treaty.  Offering comments on specific draft guidelines, he also said that more elaboration be given the matter with due regard to States’ sensitivities, the peculiarities and contextual differences embedded in treaty provisions and the manner in which State practices had responded to such variations.

MAXIME DEA (Canada), on the topic “Provisional application of treaties”, said article 46 of the Vienna Convention provided that a State could not invoke internal law as a way to invalidate its consent to be bound by a treaty obligation.  When States agreed to provisional application, they were presumably seeking to enjoy the benefits of a treaty commitment.  Therefore, article 46 remained relevant, regardless of whether a treaty was in force or provisionally applied.  It should be up to each State to ensure that its expression of consent to provisional application was consistent with its internal rules. 

To that end, he said he was keen to see the Commission’s final conclusions with regard to the applicability of article 46.  Another point relating to the expression of consent was the suggestion that agreement to provisional application could be tacit or implied in certain situations.  He said he looked forward to the Commission clarifying its thought on that issue.  In addition, clarification was requested on whether the provisional application of a treaty had the exact same legal effects as entry into force as it was important for States to understand the nature of the legal obligations.

Turning to the issue of termination and suspension of the provisional application, he noted that a State had the ability to terminate the provisional application of a treaty by notifying other States of its intention.  However, it might be necessary to provide some additional clarifications on what constituted an acceptable method of signalling an intention.  The process would presumably need to be different if a State had merely signed a treaty without ratifying it, or if a State had completed the ratification procedures but the treaty itself had not entered into force.

MARK A. SIMONOFF (United States), addressing “Protection of the environment in relation to armed conflict”, noted that most of the draft principles were phrased in mandatory terms, despite the fact that they went beyond existing legal requirements.  Furthermore, the presence among the principles of rules extracted from certain treaties was troubling as they did not reflected customary law.  In addition, the draft principles appeared to suggest that the Commission would address the concurrent application, in situations of armed conflict, of bodies of international law other than international humanitarian law.  That should be avoided; all the draft principles had been drawn from the law of armed conflict.  Among recommended adjustments to the principles, he said that it was not useful or correct to state, as was the case in draft principle II-2, that all of the law of armed conflict “shall be applied” to the natural environment.  It was hoped that principle was not intended to modify the applicability of existing law.

On the “Immunity of State officials from foreign criminal jurisdiction” he noted that in contrast to the broad view of immunity ratione materiae expressed in draft articles 2(e) and 5, he recalled his delegation’s stance on the matter in 2014, draft article 6, as narrowed by the new definition in draft article 2(f), limited the reach of such immunity.  Noting that the definition of, as well as exceptions to, immunity were both important and difficult issues, he said they merited ongoing and careful consideration and looked forward to the work of the Special Rapporteur and the Commission as the topic progressed.

Turning to the “Provisional application of treaties”, he held that its meaning in treaty law was well settled; a State agreed to apply a treaty, or certain of its provisions, prior to its entry into force for that State.  Such application gave rise to a legally binding obligation to apply the treaty, or provisions in question although that obligation could be more easily terminated than the treaty itself might be once it had entered into force.  There was some concern that draft guideline 2 and the language of the Special Rapporteur’s report might suggest that such obligations could be incurred through some method other than agreement of States, contrary to article 25 of the Vienna Convention.  He said that in future work, model clauses might be developed, which could assist practitioners.

SARAH WEISS MA’UDI (Israel) said the issue of environmental protection was adequately addressed by the Law of Armed Conflict.  There was no need for new standards regarding environmental protection, although existing international law could be clarified.  Issues such as cultural heritage, natural resources, the question of specific weapons and indigenous peoples should be excluded from the proposed principles, as such matters were already adequately addressed in other bodies of law and further discussion should take place in a different, more appropriate, forum. 

In addition, she said, the measure of protection afforded to the environment under the Law of Armed Conflict was equivalent to the level of protection to be provided to civilian populations and civilian objects.  Some of the language suggested by the Rapporteur and Drafting Committee went beyond the level of protection of the environment afforded under international law, she said, voicing concern that a standard not be promoted that was inconsistent with current international norms. 

With regard to “Immunity of State Officials from foreign criminal jurisdiction,” she said further study was needed.  For instance, there was no clear meaning of “State authority”, which should be defined or broadly construed on a case-by-case basis.  Further attention should also be given to the divergence regarding the categorization of certain forms of conduct as acts performed in an official capacity; those should be defined in accordance with the functions carried out by the State organ to which a State official belongs, as well as considering the specific State official in question. 

Questions of immunity were political and sensitive, as they necessarily referred to the sovereign powers of States, she continued.  Immunity did not preclude State officials from liability when brought before a proper legal forum, such as their own national courts or a waiver of their immunity by their State.  It was necessary for the Commission to proceed in a careful and measured manner on the topic.

Turning to “Provisional application of treaties”, she said Israel did not provisionally apply treaties unless there was a clear financial or political significance for doing so; when there was a need for exceptional flexibility; or when it was important not to wait for the completion of lengthy internal requirements for the approval of a treaty.  In such cases, special approval from the Government was required.

PARK JEEWON (Republic of Korea), on “Protection of the environment in relation to armed conflicts”, welcomed the inclusion of preventative and remedial measures.  However, she noted with caution that the term “armed conflict” had been used to include both international and non-international armed conflicts, stating that finding identical principles applicable to both could be a “big challenge”.  With respect to draft principle II-2, she expressed hope that the Commission would prepare a detailed explanation on how the principles and rules on distinction, proportionality, military necessity and precautions in attack could be applied to the environment.

On the topic “Immunity of State officials from foreign criminal jurisdiction”, she concurred with the opinion of many Commission members that “an act performed in an official capacity” should be distinguished from an “act performed in a private capacity”.  On the scope of immunity ratione materiae, the reformulated version of draft article 6 clearly stated the extent to which a specific State official could enjoy that type of immunity.  On the future work plan, she said a focus on the limits and exceptions to immunity, rather than broadening the discussion, would be of benefit. 

Turning to the topic “Provisional application of treaties”, she underscored that the legal effects of such application should be distinguished from those resulting from the treaty being entered into force.  Noting that the 1986 Vienna Convention had not yet been entered into force, the question on the appropriateness of comparing the provisional application in that Convention on the same terms with article 25 of the 1969 Convention needed careful consideration.  The topic would greatly contribute to the development of treaties law by providing clear guidelines on the mechanism of provisional application of treaties.

TREVOR REDMOND (Ireland), addressing the topic “Immunity of State officials from foreign criminal jurisdiction”, said that the concept of “an act performed in an official capacity” was central and needed to be defined to achieve greater legal certainty.  A definition should also focus on the core rationale of immunity, which protected State sovereignty and ensured efficient State functions, as opposed to benefiting individuals. 

While the identification of an act as “an act performed in an official capacity” should be carried out on a case-by-case basis, he said that it would be important to include within the commentaries details as to the criteria of characteristics that might be used in applying the definition in practice.  The concept of an act performed in an official capacity may refer to some action jure gestionis performed by State officials while fulfilling their duties and exercising State functions.  In addition, that concept had no relation to the lawfulness or otherwise of the act in question. 

Turning to the topic “Provisional application of treaties”, and aligning himself with the European Union, he said he agreed with the need to stress the conceptual distinction between the expression of consent to be bound by a treaty with a view to its entry into force and the provisional application of a treaty for a period preceding its entry into force.  Provisional application was very different from any supposed exceptional modality for entry into force, and it did not produce legal effects. 

In that regard, he continued, a treaty must allow domestic law to determine the content of an international legal obligation as regards provisional application, “unless the language of the treaty is clear and admits no other interpretation”.  Welcoming the conclusion that legal regime of provisional application of treaties between States and international organizations was the same as that relating to States, he encouraged further examination on the question whether, in the absence of any explicit provision in a constituent agreement of an organization, States parties to that agreement may decide to provisionally apply amendments thereto and, if so, how such decisions were to be taken.    

OMER DAHAB FADL MOHAMED (Sudan), focusing on the topic “Immunity of State officials from foreign criminal jurisdiction”, said the fourth report must be read together with the preceding report, as well as with commentary, since together they made up an indivisible whole.  Immunity from foreign criminal jurisdiction as enjoyed by State officials when performing an act in an official capacity stemmed from the principle of sovereign equality between nations.  There was a strong link between the concept of an “act performed in an official capacity” and the concept of “State official”. 

He went on to say that he was in favour of expanding the scope of that definition beyond heads of State, Heads of Government and ministers for foreign affairs.  Draft article 2(f) should cover all official acts performed by representatives of States.  As well, the key characteristic should be the official status of the actor or author of the act.  As State practice varied, it was not useful for defining concretely and specifically a definition of that kind.  While national courts were referred to first in cases of immunity, the practice and decisions of international courts, due to their broader and more stable nature, were more appropriate for enriching discussion on the issue. 

İPEK ZEYTINOĞLU ÖZKAN (Turkey), on “Provisional application of treaties”, said that the Commission’s analysis would provide a useful guide for States that resorted to provisional application as well as for those whose legislation did not permit such application.  However, the study should not aim to persuade States to utilize that mechanism.  Therefore she welcomed the approach favouring guidelines rather than draft articles.  In that framework, she concurred that the drafting of model clauses could be of practical importance. 

Furthermore, she said, a comparative study on domestic provisions relating to provisional application would be useful for proper consideration of the topic.  Clarification was needed as to which legal effects and obligations that arose from provisional application could be the same as if the treaty itself were in force.  Going forward, she welcomed the intention to study the relationship between provisional application and other provisions of the Vienna Convention.  Only after examination of provisional application by States should such application be considered with regard to international organizations.

HANNAH BODENMANN (Switzerland) stressed that protection of the natural environment during armed conflicts should be made more explicit and developed.  In that regard, a valuable basis was provided by international humanitarian law, which prohibited direct attacks on those parts of the natural environment that were not military objectives.  The use of methods or means of warfare liable to result in widespread, long-term and severe damage were prohibited under Additional Protocol I to the Geneva Convention.  In addition, important advantages for the protection of environmentally important area could be derived from the concept of demilitarised zones.  Thus, it would clarify the possible synergies between the concepts of demilitarised zones and the “protection zones” proposed in the draft principles.

On the topic “Immunity of State officials from foreign criminal jurisdiction,” he noted that the most recent draft articles had confirmed the broad nature of immunity ratione materiae.  The question was whether functional immunity would apply in the case of State officials acting ultra vires, or private military or security contractors working for the State, or persons who held no official position within a State but acted under its de facto control. 

He went on to say that it was, of course, still possible for the broad scope of immunity ratione materiae to be narrowed by limitations or exceptions.  There was a certain risk in broadly defining the scope of functional immunity, even if it was to be later qualified by specific exceptions.  On the one hand, exceptions to the rule could be construed narrowly.  On the other, it was difficult to foresee the kind of scenarios that might arise in the future.

SCOTT BICKERTON (New Zealand), addressing “Protection of the environment in relation to armed conflicts”, welcomed the broad scope of the Commission’s work, which recognized the harm caused to the environment irrespective of the parties to or the location of an armed conflict, or whether that conflict was international or non-international in character.  Encouraging the Commission to provisionally adopt draft principle 4 stating that “attacks against the environment by way of reprisals are prohibited” at its next session, he noted that his country’s draft Law of Armed Conflict manual explicitly prohibited such reprisals. 

The manual also prohibited members of the New Zealand Defence Force from attacking any part of the natural environment that was not a military objective or demanded by military necessity, he said.  Furthermore, the use of methods or means of warfare which were intended, or might be expected, to cause widespread, long-term and severe damage to the environment were prohibited.  He encouraged States that had not done so to adopt national practices that would ensure that such reprisals did not occur.  He said that he supported the inclusion in future reports consideration of reparation and compensation by those responsible, noting that principle 13 of the Rio Declaration on Environment and Development of 1992 could prove useful in devising appropriate language.

JUAN SANDOVAL MENDIOLEA (Mexico), on “Protection of the environment in relation to armed conflicts”, voiced his agreement with the general obligation to protect the environment based on the norms and principles of armed conflict.  He also welcomed the development of principles to meet that obligation, bearing in mind the principles of distinction, proportionality and military necessity.  Further analysis was needed of use of the term “natural environment” to ensure compatibility with the norms of international humanitarian and environmental law.  The Commission should also address nuclear arms under the topic, given their catastrophic effect on the environment.  The Special Rapporteur’s report and the draft texts represented a positive step forward on the subject.

On the “Immunity of State officials from foreign criminal jurisdiction”, he said he agreed that the approach should be based on an initial analysis of State practice and a focus on areas where further development of the law was needed.  The analysis of practice at the judicial and national levels, which should underpin the debate, was welcomed.  However, States other than those in North America and Europe should be included in that analysis.  Furthermore, the analysis of judicial decisions should not consider immunity rationae materiae where the courts discussed immunity ratione personae.  A future chapter on limitations and exceptions would be welcomed, he said, adding that he agreed with the deletion, in article 6(3) of “former heads of State and Government”, which would only have been applicable if the two forms of immunity had been exclusive rather than complementary, as was the case. 

Turning to the “Provisional application of treaties”, he said he agreed that provisional application of a treaty generated the same legal effect as if that treaty were in force.  Nevertheless, it would be interesting to examine reciprocity and a treaty’s invalidity under the Vienna Convention.  He urged the Special Rapporteur to continue analysis towards incorporating other provisions of that international instrument, noting further that while the rules of article 25 reflected a customary norm, not all of the Convention’s articles had that character.  He called for a more detailed analysis of regional and international organizations as well as depository practice with regard to provisional application.

MARÍA PALACIOS PALACIOS (Spain) said, with regard to “Protection of the environment in relation to armed conflicts”, that the many debates that had arisen within the Commission had shown the difficulty of the topic as well as a “lack of maturity” to tackle it.  While he would not delve into the details of all the issues addressed, pending provisional adoption by the Commission, he noted that numerous doubts were raised by the proposal to distinguish between preventative measures, those applicable during armed conflict and subsequent measures.

Turning to “Immunity of State officials from foreign criminal jurisdiction,” he said the texts adopted provisionally by the Drafting Committee seemed more satisfactory than those initially presented by the Special Rapporteur.  In draft article 2, inclusion of a definition of “an act performed in an official capacity” was necessary, while some deletions in the wording of draft article 6 were welcomed.  Also welcomed was the perspectives of the draft articles, pending a study in 2016 on the limits and exceptions to immunity, which would in turn bring up the crucial issue of its relation with international crimes and the International Penal Court.

On the topic of “Provisional application of treaties”, he said that the inclusion of model clauses into the Commission’s draft could prove complicated, given the great diversity that they could present as well as the existing differences amongst internal laws.  A practice commonly used within the European Union regarding “mixed treaties” could be useful.  By that practice, provisional application of clauses that fell within the area of European Union competencies was restricted. 

ARMAN ISSETOV (Kazakhstan), speaking on the “Provisional application of treaties”, concurred that while article 25 of the Vienna Convention was the basis of the legal regime for the provisional application of treaties, it did not answer all related questions.  In that light he sought guidance from the Commission on several points, including which States might agree on provisional application; whether an agreement on such application must be legally binding; and whether such an agreement could be tacit or implied. 

He also requested further substantiation of the conclusion that the legal effects of provisional application were the same as those following a treaty’s entry into force.  An investigation into whether the termination or suspension processes for both regimes were identical would be beneficial.  Further consideration of the legal regime and modalities for such termination and suspension was also welcomed.  It was important to identify the types of treaties and provisions in treaties that were often the subject of provisional application, as well as whether certain kinds of treaties addressed such applications similarly.  In that regard, it would be worthwhile to draft model clauses.

SOFIA S. SARENKOVA (Russian Federation), on the topic “Immunity of State officials from foreign criminal jurisdiction”, expressed agreement that the basic principles for the application of immunity ratione materiae applied only to acts performed by officials in an official capacity and was not time-bound.  Article 6, provision 3 should highlight the applicability to persons enjoying immunity ratione personae or immunity ratione materiae after they had left office.  Failure to do so could lead to questions being raised, such as whether immunity of the troika would be subject to rules developed by the Commission with respect to immunity ratione materiae.  With respect to defining an “act performed in an official capacity”, she said the draft Commission articles on the responsibility of States for internationally wrongful acts was useful for understanding what was an “act performed in an official capacity”. 

However, the immunity of officials and responsibility of States should not be treated equally, she said, adding that the carrying out of an act by an individual in an official capacity did not mean such actions came under the responsibility of the State.  A better approach would be to exclude that definition from the draft.  As had been previously noted, an “act performed in an official capacity” had not been defined by international law.  Flexibility was required for an effective contribution to this sphere.  Provision 1 of article 6 that immunity ratione materiae should be applied to acts performed in an official capacity was sufficient.  The Commission should focus on procedural issues, which played a vital role in the application of immunity of State officials.

Turning to the topic “Provisional application of treaties”, she said it was important to clarify its legal nature as that determined the various aspects of its operation and effect.  In addition, it was the starting point for the examination of the procedural aspect of its use.  The entry into force and validity of a treaty should be considered a norm and the main form for its existence.  Therefore, a treaty’s validity gave rise to the fullest legal consequences for parties to the treaty.

Provisional application itself was not designed to establish stable treaty relations, she continued.  In contrast, the provisional application was preparation towards the validity or entry into force of a treaty whereby the provisions of a treaty were applied in anticipation of its entry into force.  Questions remained on the topic, including, among others, if there were time limits with respect to provisional application.  A full-fledged study on the topic should include a full range of its possible manifestations. 

Draft Resolutions

MOHAMED IBRAHIM EL SHINAWY (Egypt) introduced the draft resolution on the report of the Special Committee on the Charter of the United Nations and on the Strengthening of the role of the Organization (document A/C.6/70/L.11).  The text contained nine technical updates, as well as a new operative paragraph 5, which recalled the Committee’s proposal to commemorate the seventieth anniversary of the Charter of the United Nations and welcomed the activities performed in that regard.

The Committee then took action on two draft resolutions.  The first, on the report of the United Nations Commission on International Trade Law on the work of its forty-eighth session (document A/C.6/70/L.9) was approved without a vote.

The Committee then turned its attention to the draft resolution on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law (document A/C.6/70/L.10) as revised, which was then approved without a vote.

For information media. Not an official record.