Inaugurating its rigorous eight-day deliberation on the work done by the International Law Commission in its sixty-eighth session, the Sixth Committee (Legal) began its debate on the first of three clusters of topics that included subjects as broad-ranging as the protection of persons in the event of disasters and the identification of customary international law.
“In a world where we are often looking at the past to foster the future in a sustainable and equitable manner,” the International Law Commission (ILC) would continue to assist the General Assembly in the progressive development of international law and its codification, said Pedro Comissario Afonso, the Commission’s Chairman, as he introduced that body’s report (document A/71/10). The objectives of such codification remained as relevant today as when it had begun in the nineteenth century, he reminded the Committee.
Highlighting the progress made in topics in the first cluster, he noted that the Commission had adopted sixteen draft conclusions on “Identification of customary international law” and thirteen draft conclusions on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”.
Giving an overview of those topics he pointed out that the draft conclusions on “Identification of customary international law,” were concerned with the methodology for identifying customary international law. The draft conclusions on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties,” situated it within the framework of the rules on interpretation of the 1960 Vienna Convention on the Law of Treaties.
One of the session’s achievements has been the adoption, after the second reading, of a preamble and a set of eighteen draft articles on the “Protection of persons in the event of disasters”, he said, adding that the Commission had decided to recommend to the General Assembly the elaboration of a convention on the basis of those adopted draft texts.
Some of the reformulation on those drafts incorporated the definition of “disaster” that included a reference to “mass displacement” as one of the consequences of disaster, he pointed out. In addition, the newly added draft preamble to the text called attention to the frequency and severity of natural and human-made disasters, while recalling the fundamental value of solidarity in international relations.
Italy’s delegate said the Commission’s work on that topic had reached a convergence, with the draft articles delivering clarity, coherence, guidance and effectiveness of action. On the other hand, the “spontaneous” legal framework that currently existed through the growing number of bilateral, regional and multilateral instruments related to disaster prevention and management lacked uniformity in terminology, definitions, principles and the nature and scope of obligations.
The representative of the European Union welcomed the adoption of draft articles and commentaries on that topic, and added that if the Assembly decided to take up the ILC’s recommendation to create a convention based on those drafts, his regional bloc would be ready to contribute to the future work on that instrument.
However other delegates differed, with the United States’ representative stating that not all concerns expressed by Member States, including his own, had been resolved. Therefore, he suggested that the draft texts should be approached as a provision of practical guidance rather than as a convention.
Echoing that stance, the representative of France expressed reservations on that matter. It was not clear that such a convention would enjoy sufficient support from States and, therefore, justify the necessary negotiations required in elaborating such an instrument, he stated.
Also speaking today were representatives of the Dominican Republic (on behalf of the Community of Latin American and Caribbean Countries), Finland (on behalf of the Nordic Countries) and China.
The Sixth Committee will next meet at 10 a.m. on Tuesday, 25 October, to continue consideration of the first cluster of topics from the report of the International Law Commission.
Introduction of Report
PEDRO COMISSARIO AFONSO, Chairman of the International Law Commission (ILC), said that “in a world where we are often looking at the past to foster the future in a sustainable and equitable manner”, the Commission would continue to assist the General Assembly in carrying out its mandate in the progressive development and codification of international law. That was a continuing task, whose objectives remained as relevant today as when the “codification movement” began in the nineteenth century.
Giving an overview of the first clusters of topics, he said that Chapter II reflected the important progress made in the ILC’s sixty-eighth session, including the adoption, on second reading, of a preamble and a set of eighteen draft articles on the “Protection of persons in the event of disasters.” Also adopted were sixteen draft conclusions on “Identification of customary international law” and thirteen draft conclusions on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”. In addition, the Commission had made substantial progress on the topics of “Crimes against humanity,” “Protection of atmosphere,” “Protection of the environment in relation to armed conflicts,” “Immunity of State officials from foreign criminal jurisdiction” and “Provisional application of treaties.”
Work had begun on “Jus cogens” as well, he added, drawing attention to specific issues on which the comments of Governments would be of particular interest to the Commission. Those ranged from existing topics such as “Protection of atmosphere” to new topics such as “Settlement of international disputes to which international organizations are parties” and “Succession of States in respect of State responsibility.” Acknowledging the assistance of the Office of Legal Affairs’ Codification Division, he noted the preparation of two memoranda on the role of national courts decisions in the case law of international courts and tribunals of a universal character for the purpose of the determination of customary international law.
Taking up “Protection of persons in the event of disasters”, he said that the Commission, having adopted, on second reading, the draft articles, had decided to recommend to the General Assembly the elaboration of a convention. The draft preamble was a new addition to the text, calling attention to the frequency and severity of natural and human-made disasters and their damaging impact. It also underscored the fundamental value of solidarity in international relations, stressed the principle of the sovereignty of the States and reaffirmed the primary role of the affected State in the provision of disaster relief assistance.
Highlighting draft article 3 on the use of terms, he said that the definition of “disaster” included a reference to “mass displacement” as one of the consequences of disaster. The definition of “affected State,” central to the entire set of draft articles, had been subject to the most reformulation. The Commission had been particularly concerned with clarifying which States would be “affected States,” and had focused on making the territorial link in the definition more prominent. As for draft article 11, which concerned the duty of the affected State to seek external assistance, he noted that a new qualifier, “manifestly” had been added before “exceeds its national capacity” in order to establish a new threshold requirement.
Giving an overview of the topic, “Identification of customary international law,” he said that after consideration of the fourth report of the Special Rapporteur, the Commission had adopted a set of sixteen draft conclusions concerning the methodology for identifying customary international law and offering practical guidance on how its existence (or non-existence) was to be determined. Draft conclusion 3 addressed the assessment of evidence, by setting out the overarching principle that the assessment of any and all available evidence must be careful and contextual, while draft conclusion 4 specified whose practice was to be taken into account when determining the existence of a rule of customary international law.
He also noted that, in draft conclusion 4, while paragraph 1 made it clear that it was primarily the practice or States that was to be looked at, paragraph 2 indicated that in certain cases, the practice of international organizations also contributed to the formation, or expression, of rules of customary international law. The significance of treaties was addressed by draft conclusion 11, with paragraph 1 stating that a rule set forth in a treaty might reflect a rule of customary international law if the treaty rule codified a rule existing at the time when the treaty was concluded; if the treaty had led to the crystallization of a rule of customary international law that had started to emerge prior to the conclusion of the treaty; and if the treaty rule had given rise to a general practice that was accepted as law.
Taking up the first cluster’s final topic, “Subsequent agreements and subsequent practice in relation to the interpretation of treaties,” he said that the Commission had adopted two new draft conclusions, situating subsequent agreements and subsequent practice within the framework of the rules on interpretation of the 1960 Vienna Convention on the Law of Treaties by identifying and elucidating relevant authorities and examples. Highlighting draft conclusion 13  on pronouncements of expert treaty bodies, he said that it provided that such pronouncements, as a form of practice under a treaty or otherwise, might be relevant for its interpretation, either in connection with the practice of States parties, or by themselves.
Statements on Cluster I
JUAN AVILA (Dominican Republic) speaking for the Community of Latin American and Caribbean States (CELAC), said that the International Law Commission (ILC) required Governments to submit laws, decrees, judicial decisions and treaties relevant to the topic that was being studied by the Commission and that the contribution of each Member States was important.
There was, however, a need to consider the obstacles faced by many States to provide the required information, mainly due to asymmetries among teams of international lawyers in different countries, he said. In order to increase legitimacy in the development and codification of international law, it was extremely important that the international community did its best to ensure that all States participated in the discussions.
He also reiterated a call to hold half of the ILC sessions in the United Nations Headquarters in New York, rather than Geneva. That would allow Sixth Committee delegates to engage earlier in topics studied by the ILC. It was regrettable that, due to budgetary constraints, not all Special Rapporteurs could come to New York and interact with Sixth Committee delegates as their participation was essential to the thematic debates.
Commending the significant progress the ILC had made in its latest report, s/he also noted the completion of the second reading of the draft articles on the “Protection of persons in the event of disasters”, as well as the completion of the first reading of the draft conclusions on “Identification of customary international law” and “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”. He also noted that the Commission was still requesting for more information on the topics: “Crimes against humanity”, “Protection of the atmosphere”, “Provisional application of treaties” and “Jus Cogens”. It was of great importance that States submit views by 31 January 2018.
LUCIO GUSSETTI, representative of the European Union, welcomed the adoption of the draft articles on “Protection of persons in the event of disasters.” While noting that not all observations and suggestions were reflected in the final texts of the draft articles and the commentaries, he also welcomed the introduction into the commentaries of the reference to regional integration organizations.
In regards to the ILC’s recommendation to the General Assembly for the elaboration of a convention on the basis of those draft articles, he said that if the Assembly decided to follow that path, the European Union would be ready to contribute to the future work on that instrument.
On the “Identification of customary international law”, he noted the availability of the draft articles that the ILC had previously adopted, as well as the Special Rapporteur’s fourth report. He also recalled that the ILC was to receive written comments on the draft conclusions and commentaries by 31 January 2018.
Turning to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties,” he highlighted the adoption of the draft conclusions and commentaries. Noting that the ILC would like comments by 1 January 2018, he said that it was his understanding that the commentary to draft conclusion 1 would not have an impact on the relevance of the Commission’s conclusions in cases where the rules of articles 31 and 32 of the Vienna Convention on the Law of Treaties were applied as a matter of customary international law.
MARJA LEHTO (Finland), also speaking for the Nordic countries (Denmark, Norway, Iceland and Sweden), said the draft articles on “Protection of persons in the event of disaster” achieved an adequate balance between the rights and obligations of the affected State and the assisting actors. As stated in the commentary to draft article 13, that reflected the dual nature of sovereignty with rights and obligations. The commentary contained important explanations as to the notion of “arbitrarily” in paragraph 2 of draft article 13.
Turning to “Identification of customary international law”, she commended the Special Rapporteur and the Commission for elaborating on the concept of “opinio juris”, the “acceptance as law”, and its explicit inclusion in the draft conclusion. Opinio juris had to be separated from other “extralegal” motives for action, such as comity, political expedience or convenience, which might drive action or inaction of States.
She also welcomed the inclusion of the persistent objector rule, which detailed that in certain circumstances a customary rule could not be applicable to particular States. Particular concern was needed for the category of rules to which a State objected and consideration had to be given to universal respect for fundamental rules, particularly those for the protection of individuals.
Voicing appreciation for the draft commentary on conclusion 12, she noted the unique characteristics of the General Assembly as a plenary organ of nearly universal participation. In that regard, the Assembly’s unique characteristics could be expanded in the commentary to the conclusions.
On “Subsequent agreements and subsequent practices”, she said that the ILC’s report highlighted that expert treaty bodies varied greatly in function and legal expertise. In regards to the notion, “may give rise to”, she said that additional tools might be needed to establish that all parties would have to accept a particular pronouncement of an expert treaty body as a proper interpretation of the treaty.
BRIAN EGAN (United States), in regards to the adoption of draft conclusions on “Protection of persons in the event of disasters,” said that while the Commission had recommended the elaboration of a convention on that topic he did not believe all concerns had been resolved. Therefore, those draft conclusions should be approached as provision of practical guidance rather than as a convention.
Turning to the Commission’s work on “Identification of customary international law”, he said that a detailed review of those draft conclusions was being conducted by his delegation, which had identified concerns relating to aspects that went beyond the current state of international law. The value of such work was in providing an easily understandable guide to non-experts in international law. Mixing elements of progressive and established elements would undermine the utility of the product. Aspects of the text needed adjustments to avoid misleading the reader. The draft conclusions and commentaries might give the impression that customary international law was formed easily.
Turning to “Subsequent agreements and subsequent practice,” he said that he was particularly focused on paragraph 3 of draft conclusion 12 on constituent instruments of international organizations which appeared not to refer to the practice of States Parties but to the conduct of the international organization itself. Also, in draft conclusion 11 on decisions adopted within the framework of a conference or States Parties, he added that it might suggest that the work of such conferences might constitute acts of subsequent practice.
XU HONG (China), on “Protection of persons in the event of disaster”, said that the adjustments made on the draft articles regarding the rights and obligations of both affected States and assisting parties were improvements to the balance between the two sides and their respective rights and obligations. On the other hand, the draft was heavy on lex ferenda. Although the provisions were improvements to the developments of the norms in international law governing disaster relief, they were far from becoming lex lata, and were not general State practice.
On “Identification of customary international law”, he said, among other things, that entities which were neither States nor international organizations could not contribute to the formation and expression of customary international law as they did not meet the requirement of practice. The notion that the conduct of other actors “may be relevant” was rather ambiguous; it was an open question whether that expression should be included in draft conclusion 4. Furthermore, the international community must exercise caution in determining whether “inaction” could serve as evidence for opinion juris as that term could not simply be treated as “implied consent”.
Furthermore, “persistent objector” remained debatable as it constituted a constraint on the effect of customary international law, he said, asking the Sixth Committee whether there was a place for it in the draft. As well, for a rule of customary international law in the process of formation, he questioned if the absence of objection from a State meant consent, adding that could not be determined without examining whether the State had knowledge of the rule involved.
Turning to “Subsequent agreements and subsequent practice”, he said that the interpretation of treaties should strictly follow article 31 of the 1969 Vienna Convention and that the draft conclusions should only play a supplementary role.
FRANCOIS ALABRUNE (France), on the “Protection of Persons”, said that he had some doubts about the proposal of drafting a convention on the basis of the draft articles. It was not clear that a convention would enjoy sufficient support from States and thus justify the necessary negotiations required in elaborating such an instrument.
Turning to “Identification of customary international law”, he welcomed the comments on the draft conclusions. The draft commentary would benefit from being completed with examples of situations whereby it was concluded that there was a rule of customary international law. The current text referred almost exclusively to negative examples and to situations whereby the existence of customary norms had been rejected.
Speaking on “Subsequent agreements and subsequent practice”, he said that he approved of the general approach taken by the Special Rapporteur, according to which the Commission’s work should focus first on treaty law amongst States. However, there were some doubts regarding draft conclusion 13 and how it took into account the views of treaty body experts with regard to subsequent practice.
Turning to “crimes against humanity”, he said that the new draft articles were detailed and specific while allowing States useful leeway in a number of situations. Recalling the role of the International Criminal Court as the first standing international criminal jurisdiction called upon to play a central role in judging crimes against humanity, he added that a certain amount of procedural freedom should be allowed to States on matters such as choice of punishment. In that regard, he recalled his country’s struggle against the death penalty and against all physical penalties that involved inhuman treatment.
On “Protection of the atmosphere”, he said that the draft text, especially draft guideline 4, had transposed the principles formulated for the protection of environment into the issue of degradation of atmosphere. In addition, draft guidelines 5 and 6 stated that the atmosphere should be used in a reasonable and sustainable manner, but was not clear what “use of atmosphere” meant.
Regarding “Jus cogens”, he added that it was “rather astonishing” that draft conclusions were already drafted on such a new topic. It would be more appropriate for the Commission to focus on reviewing practices and opinions, since States’ views were often divergent. Without such review, the Commission’s work might end up being too theoretical or ideological. Jus cogens could not be likened to fundamental law. Despite his country’s well-known reservations, the Rapporteur had concluded that France was not a persistent objector.
On “protection of the environment in relation to armed conflicts”, he added that it was unfortunate that a number of principles were not supported by any practical elements or case law. He also said that the Commission had begun its work on “Immunity of State officials from foreign criminal jurisdiction”, on the basis of the Special Rapporteur’s report which was only available in two languages, and of which only one was a working language of the Organization. He would reserve observations on that matter until next year’s session, he stated, adding that there had been an error in the Special Rapporteur’s last report regarding her interpretation of French jurisprudence.
On the functioning of the Commission, he said that he believed that the inscription of two new topics on the long-term programme lengthened the already long list of topics. He also expressed doubt about the usefulness of the Commission conducting part of its future session in New York since there were better working conditions in Geneva.
ANDREA TIRITICCO (Italy), on “Protection of persons in the event of disaster” said that the codification effort embodied in the draft articles would deliver much-needed clarity, coherence, guidance and effectiveness of action. The growing number of bilateral, regional and multilateral instruments related to disaster prevention, management and response had created a “spontaneous” legal framework. That framework lacked uniformity in terminology, definitions, principles and the nature and scope of obligations. There was a strong need for coordination to foster a greater degree of legal stability and avoid ambiguity, confusions and overlaps.
Turning to “Protection of atmosphere”, he said that involvement of scientific experts in international environmental law was very useful. Such involvement helped define the term “atmosphere” and notions of atmospheric pollution and degradation, which then set the scene for subsequent guidelines. The participation of scientists demonstrated the need for expertise in various fields to draft an adequate legal response.
As a cornerstone of the draft text, he went on to say, guideline 3 captures the role of due diligence as an obligation for States to “prevent, reduce or control” atmospheric pollution and degradation. The guidelines introduce the environmental impact assessment to control public and private activities, while applying the principles of sustainable and equitable use of the atmosphere in intentional large-scale modifications. The work took stock of relevant decisions of international tribunals and the 2030 Sustainable Development Agenda and the Paris Agreement on climate change.
On “provisional application of treaties”, he said that while the work sought a balance between the Vienna Convention and the implication of the provisional application for domestic law, ideally international rules should coexist with some accommodation for domestic law, thus creating a balanced “two-tiered” legal framework. An approach rooted in practice was favoured, including providing States with a toolkit to be used when appropriate. However, draft guidelines 7 and 8 were highlighted as needing more nuanced language, although much would depend on the consensus reached by States on the matte’s overall scope.