Immunity for State Officials, Gaps in Environmental Law Debated, as Delegates Continue Review of International Law Commission Report
The trust that States placed in the International Court of Justice was vital to the future of international jurisdiction and the very nature of the Court’s work, the President of that body told the Sixth Committee (Legal) today.
Ronny Abraham, addressing the Committee on the judicial practice of the Court, said that the future depended on how the trust of States in the Court would evolve. In theory, the regulation of relationships through law was better than the regulation by force. In reality, of course, States were sovereign entities and in full freedom to consent and not consent to the Court’s jurisdiction. What delegates could do in the interim was to ensure that the trust of States in the Court was strengthened.
He also outlined various scenarios that focused on how third States could play an active role in a contentious case between two other States, as well as circumstances where protection could be afforded to third States even when they took no action in contentious cases to which they were not parties and whose resolution might concern or affect them.
Amongst the several complex cases he described was that of Monetary Gold Removed from Rome in 1943, which had been introduced by Italy against France, the United Kingdom, and the United States. Recalling that the Court was asked to decide to which State — Italy or the United Kingdom — should be delivered a certain quantity of monetary gold removed from Rome by Germany in 1943, he pointed out that the gold was recognized as belonging to Albania.
In that case, he said that the Court had noted that it was not merely called upon to say whether the gold should be delivered to Italy or the United Kingdom, it also had to determine first certain legal questions upon the solution of which depended the delivery of the gold. The Court was of the view that to go into the merits of such questions would be to decide a dispute between Italy and Albania, which it could not do without the consent of the latter.
During the interactive dialogue that followed, Mr. Abraham responded to delegates’ concerns, in particular to Kiribati’s delegate, who pointed out that storms that were destroying the infrastructure in his homeland had been caused by people’s irresponsible behaviour, a situation which could be defined as a legal wrong.
While acknowledging the serious damage climate change caused, Mr. Abraham noted that the Court was but one part of the United Nations system. It acted when there were contentious cases before it or when there were requests for advisory opinions. It could not by itself do everything, he said, stressing that the international community in its entirety must confront that matter very seriously.
The importance of confronting environmental concerns holistically was also echoed in the Sixth Committee’s consideration of the International Law Commission Report’s second cluster of topics. While praising the Commission’s work on the “Protection of the atmosphere”, delegates also debated about which areas and matters fell within its primary mandate.
The twenty‑first century, said Chile’s delegate, had shown that it was not enough to address the protection of the environment in general. Emphasizing that science had proved that atmospheric pollution and human activity were responsible for global warming, he pointed to draft guideline 9 which established that attention must be given to persons and groups vulnerable to atmospheric degradation, such as indigenous persons, people of low‑lying coastal areas, and small island developing States affected by sea level rise.
However, the representative of the Czech Republic noted that, while he believed the problem of climate change was one of the most serious challenges being faced by the international community, the real issues, including interaction between the oceans and the atmosphere and the impact of human activities on the climate, had to be tackled. The Commission has no competence on that matter, he said.
Slovakia’s delegate agreed, emphasizing that, notwithstanding the seriousness of the problem, it was not up to the Commission to inflict policies in areas that fell outside its primary mandate. The Commission should focus on a legal approach. He also expressed concern that the Commission’s consideration of “Immunity of State officials from foreign criminal jurisdiction” resulted in a recorded vote for the adoption of draft article 7 on exceptions to immunity ratione materiae. The Commission should have explored the topic further in order to arrive at a possible consensual solution.
Also calling for caution and prudence, China’s representative said that draft article 7 had been hastily adopted without thorough discussion. The six exceptions to immunity were not grounded in general international practice, but based mainly on European and American jurisdictions, he said, adding that the draft failed to qualify as codification or progressive development of customary international law.
For Spain’s delegate, there was no doubt about the consideration of customary international law of the immunity of former Heads of State and of Government and Ministers for Foreign Affairs. The same, however, could not be said about exceptions and limits to the immunity ratione materiae because State practice was scarce. The Commission should avoid giving the impression of creating law, he said; otherwise, the proposal would be stillborn.
One of the century’s greatest achievements, recalled Germany’s representative, was the principle of individual responsibility for international crimes. Her country had been on the forefront of that issue since the Nuremburg trials in the 1940s. Nonetheless, the fight against impunity was far from won. Pointing to methodological problems relating to draft article 7, she stressed that it was States, not the Commission that created international law. The Commission’s mandates “must not be blurred”, she warned.
Still, Greece’s delegate noted that despite the heated debate, the majority of members had endorsed the systemic approach to the institution of immunity. The rules on immunity should strike a balance between respect for the sovereign equality of States and the crucial need to combat impunity for the most serious crimes under international law, she reminded the Committee.
Also speaking today were representatives of France, Sri Lanka, Guatemala, Thailand, Romania, Poland, South Africa, Estonia, Ireland, Netherlands, Turkey, Belarus, Tonga, United Kingdom, Iran, New Zealand, Cuba, Micronesia, Republic of Korea, Israel, Malaysia, Viet Nam, United States, Indonesia, and Senegal.
The Sixth Committee will next meet at 3 p.m. on Tuesday, 31 October, to take action and continue consideration of the report of the International Law Commission.
Remarks by President of International Court of Justice
RONNY ABRAHAM, President of the International Court of Justice, addressed the place of third parties in the judicial practice and jurisprudence of the Court. Article 59 of the Statute of the International Court of Justice provided that the “decision of the Court had no binding force except between the parties and in respect of that particular case”. Nonetheless, the Court recognized that the interests of third States, particularly their legal interests, might be affected in contentious proceedings. In certain circumstances, third States could play an active role in a contentious case between two other States. In other situations, protection could be afforded to third States even when they took no action in contentious cases to which they were not parties and whose resolution might concern or affect them.
Turning to the first scenario, he noted that the Statute of the Court had two articles on intervention. The first, article 62, provided that should a State consider that it had an interest of a legal nature which might be affected by the decision of the case, it might submit a request to the Court to be permitted to intervene. The second, article 63, addressed situations regarding the construction of a convention to which States, other than those concerned in the case, were parties in questions. The conditions for intervention on the basis of article 63 were clearly defined, he said, and the Statute provided that intervention on that basis was a right. A third State that invoked article 63 of the Statute did not file an application for permission to intervene, but a declaration of intervention.
Since its inception, he recalled, the Court had been seized of only four declarations of intervention under article 63. Such declarations for intervention on the basis of article 63 were clear, and the object of such intervention was limited. In order for intervention to be possible, the principal proceedings must call into question the construction of a convention to which the State wishing to intervene was party. Illustrating that, he noted that in its Order of 6 February 2013, the Court found had that the declaration of intervention filed by New Zealand in the case concerning Whaling in the Antarctic (Australia v. Japan) was admissible.
The Court, he continued, had also had occasion to clarify the conditions under which a third party might intervene on the basis of article 62 in its jurisprudence. A State might do so without any basis of jurisdiction between itself and the parties to the proceedings. The distinction between intervention as a party and intervention as a non‑party was not only critical in terms of the conditions that must be met for an application for permission to intervene to be accepted; it also had implications for the scope of the intervening State’s procedural rights, he stressed. The purpose of intervention under article 62 was preventive.
He went on to say that, when deciding on an application to intervene, the Court asked itself only one question: in the dispute forming the subject matter of the main proceedings, was the legal interest of the third State at issue? That was clearly expressed in the case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta) in which Italy seeking to intervene under article 62 of the Statute, invoked inter alia, in support of its application of permission to intervene, the impossibility, or at least the greatly increased difficulty, of the Court’s performing the task entrusted to it by the Special Agreement between Malta and Libya in the absence of participation in the proceedings by Italy as intervener. In that case, the Court had decided that Italy’s application for permission to intervene could not be allowed.
Turning to what might compel a third State to seek to intervene in a case on the basis of article 62, he said that an intervening State did not necessarily become a party to the case on account of its intervention. Regardless of whether it intervened as a party or not, the State was entitled in the course of the oral proceedings to submit its observations on the subject matter of the intervention. However, the capacity in which a third State intervened had implications for both the procedural rights it acquired and its obligations. He noted that the Court had summarized those differences in the case concerning Territorial and Maritime Dispute, in which Honduras primarily sought to be permitted to intervene as a party and in the alternative, as a non‑party.
Regarding protection afforded by the Court to third States even when no action was being taken by them, he said that such consideration manifested itself in two ways. First, in certain circumstances, the Court declared that it was unable to rule on a question which might affect the interests of third States not party to the proceedings, and secondly the Court ensured that its decision did not affect the interests of those States. Highlighting the well‑known Monetary Gold Removed from Rome in 1943 case as an illustration of the first scenario, he noted that the Court first observed that it could not rule on the rights and obligations of a third State in proceedings without the consent of that State when those rights and obligations formed the very subject matter of the decision to be taken.
In that case, which had been introduced by Italy against France, the United Kingdom, and the United States, he recalled that the Court was asked to decide to which State — Italy or the United Kingdom — should be delivered a certain quantity of monetary gold removed from Rome by Germany in 1943, gold which was recognized as belonging to Albania, but to which both the United Kingdom and Italy had claims. The Court noted that it was not merely called upon to say whether the gold should be delivered to Italy or the United Kingdom, it also had to determine first certain legal questions upon the solution of which depended the delivery of the gold. The decision would not only “affect” Albania’s legal interests, those legal interests would form the very subject matter of the decision. The Court was of the view that to go into the merits of such questions would be to decide a dispute between Italy and Albania, which it could not do without the consent of the latter.
The Court also protected the rights and interests of third States in contentious proceedings by ensuring that its decision did not affect their interests, he continued. Using the example of maritime delimitation disputes, he said that when identifying the relevant area it was being asked to delimit, the Court did not consider that it was precluded from including in that area spaces in which the rights of third States might be affected. However, such inclusion was without prejudice to any rights which third States might claim to hold in that area. Thanking the delegates for the interest they had shown in the work of the Court, he added that he would be delighted to hear their reactions or questions.
The representative of the United States, observing that article 63 provided judgements that were equally binding but said nothing of those who intervened based on article 62, asked how the International Criminal Court would address that matter.
Mr. ABRAHAM said that he thought that the drafter of article 62 had in mind an ordinary intervention as a non‑party, and in that case it was normal for the judgement not to have any authority. The judgement was binding to the parties of the case, not the intervening party. When a third party intervened as a party, if the conditions were met, the decision rendered by the Court would also be binding to that third party with regard to the points that were the subject of the intervention. He noted that, in the drafting of articles 62 and 63, he saw nothing obscure or ambiguous. Rather, it was the Court’s jurisprudence that made it more complicated by introducing in article 62 the concept of intervention as a party, which was not in the minds of the drafters.
Encouraging delegates to ask questions, BURHAN GAFOOR (Singapore), Chair of the Sixth Committee, said that the President was “a very nice man” and they should not be intimidated. Mr. ABRAHAM responded, noting that he was the one feeling intimidated, much like a student facing examiners.
The representative of Kiribati said that huge waves and storms were causing much damage to his homeland and repeatedly destroying its infrastructure. With so much recurring damage being done, his country could not move forward. It had been established that those conditions were being caused by the irresponsible behaviour of people. In villages, when someone did something that affected the well‑being of the entire village, the village came together and declared it as morally wrong. Could the irresponsible actions of those people be defined as a legal wrong and could action be taken, he asked.
The representative of Guatemala said that the International Court of Justice was a guarantor of the rule of law internationally. Dispute settlement among States was extremely important and the Court provided a way to do so peacefully. Meeting the President was very enriching to the delegates of the Sixth Committee, he said.
Mr. GAFOOR noted that among the assembled delegates, there would be, in the future, “a handful of judges in the International Court of Justice”. The work done by the judges on the bench of the World Court was a role model and inspiration for young lawyers and legal counsels. What, he asked, was the President’s vision for the Court in the next twenty to thirty years and “what do we need to do here as diplomats to get to that vision?”
Responding, Mr. ABRAHAM thanked the delegate of Guatemala for his kind words. Turning to the question about climate change and the serious damage it caused, he said that the international community in its entirety must take that matter very seriously. The Court was but one part of the United Nations system. It could not by itself do everything. It acted when there were contentious cases before it or when there were requests for advisory opinions. In future years, the Court might continue to contribute to the clarification and development of international law in the area of the environment, but it could not do so by itself. Cases had to be brought to it and they had to be strictly verified to ensure that they fell within the framework of the Court’s competence.
Turning to the question on the future of international jurisdiction, he said that the work of the Court required the consent of the State, and the consent of States depended on the trust placed on the Court. The future depended on how the trust of States in the Court would evolve, he said, noting that in theory, the regulation of relationships through law was better than the regulation by force. In reality, of course, States were sovereign entities and in full freedom to consent and not consent to the Court’s jurisdiction. What delegates could do in the interim was to ensure that the trust of States in the Court was strengthened, he said.
Statements on Cluster II
METOD SPACEK (Slovakia), voicing concerns about the International Law Commission’s work on the topic of “Protection of the atmosphere”, emphasized that “the topic is not developing easily”. Reaffirming his firm support of all international efforts to tackle climate change and global warming, he also noted that atmospheric pollution and degradation were the primary contributors to climate change. Nonetheless, it was not up to the Commission to inflict policies in areas that fell outside its primary mandate. When faced with suggestions on developing rules to protect the atmosphere, the Commission should focus on the legal approach. The present text of the draft guidelines lacked a clear purpose and it was superfluous to tackle the inter‑relationships without providing practical solutions.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he noted the apparent deadlock in the Commission’s consideration of exceptions to immunity ratione materiae which forced the adoption of draft article 7 through a recorded vote. Stressing that the Commission should have explored the topic further in order to arrive at a possible consensual solution, he cautioned that the division regarding that draft article would not go unnoticed in the General Assembly. While a list of international crimes would help achieve legal certainty, it did lead to the question of whether it reflected customary international law or progressive development.
FRANÇOIS ALABRUNE (France), on “Protection of the atmosphere”, said that the work underway could look at the draft global pact for the environment which had been presented by Frances’ President [Emmanuel Macron] during the recent General Assembly side‑lines. The Commission should bear in mind that particular point, he said, underscoring that the context agreed in 2013 when the topic was included on the Commission’s work programme was particularly necessary for the smooth running of the work. On draft guideline 9, he questioned the point of having that provision. The aim was to avoid any conflict or divergence between rules regarding the protection of the atmosphere and other relevant rules of international law. However, the guidelines that provide the rules pertaining to protection would not have any binding power.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said that the issue was of great importance to States. In light of the role of rules relating to that matter, he recalled the difficulties noted in the Commission’s report. The consideration of that subject, particularly draft article 7, had caused a lively debate within the Commission itself, with the provision being adopted by a majority vote. Given the specific issues at stake, the Commission should have taken the time to forge consensus. National jurisdictions were very carefully following the work of the Commission and the absence of a consensus was not likely to promote a harmonious interpretation of international rules, he said.
AMRITH ROHAN PERERA (Sri Lanka), regarding “Immunity of State officials from foreign criminal jurisdiction”, noted that the Commission had not been able to determine the existence of a customary rule allowing for the application of limitations and exceptions with respect to immunity ratione personae. Nonetheless, the report had also concluded that limitations and exceptions to the immunity of State officials were extant in that context. The sharply divisive debate within the Commission on draft article 7 had led to a vote on an issue that should have been given further critical analysis and a decision by consensus. The extent of the treaty practice that had been cited was problematic.
He went on to say that treaties dealing with international crimes of a serious nature did not expressly provide for limitations and exceptions with respect to crimes covered under those conventions. The blurring of the distinction between the application of limitations and exceptions in proceedings before an international court and in those before the domestic court of a foreign State made the basic approach of draft article 7 somewhat problematic. Aligning draft article 7 with the approach of instruments relating to international courts or tribunals would run the inevitable risk of affecting the peace and stability in relations among States, when one State opted to exercise criminal jurisdiction over officials of another, before their own courts, he warned.
KANOKWAN PENGSUWAN (Thailand) stated that the report on “Protection of the atmosphere” addressed the interrelationship between rules of international law relating to the protection of the atmosphere and various other rules of international law. Those included, among others, international trade and investment law, the Law of the Sea, and international law on human rights. The Commission’s work raised the visibility and importance of the issue itself, as well as the complex legal issues surrounding it, including the issue of fragmentation. Of particular interest was paragraph 1 of draft guideline 9, she said, voicing support for the suggestion that all relevant rules of international law should be identified, interpreted, and applied in way that led to a single set of compatible obligations.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, she highlighted draft article 7, listing crimes for which immunity did not apply. The exception was for persons enjoying immunity ratione personae, on the basis of the Special Rapporteur’s finding that no customary international law existed in relation to limitations or exceptions to such type of immunity. The work on that sensitive and complicated topic should be based on lex lata and State practice, she stressed.
XU HONG (China), addressing “Protection of the atmosphere”, said existing rules of international law would be needed for draft guideline 9 to apply. Noting that there was no applicable international treaty in that field, he said the article lacked the backing of international practice. While the draft guideline might have some utility for theoretical purposes, it did not offer much practical value. The Commission might wish to further consider the need to retain it.
On “Immunity of State officials from foreign criminal jurisdiction”, he said draft article 7 had been hastily adopted without thorough discussion. The Commission should proceed with caution and prudence, continuing to seek on the issue of exceptions the broadest possible consensus. The six exceptions to immunity in the draft were not grounded in general international practice, but based mainly on European and American jurisdictions. Moreover, the methodology used in the study had been marred by tendentious selectiveness, with many examples irrelevant to the immunity of State officials. The provisions of the draft failed to qualify as codification or progressive development of customary international law.
Regarding “Peremptory norms of general international law” (jus cogens), he said that topic should be based on article 53 of the Vienna Convention on the Law of Treaties as well as State practice, and avoid relying excessively on theoretical deduction. The three basic elements proposed by the Special Rapporteur in his first report — that norms of jus cogens were universally applicable, hierarchically superior to other norms of international law, and protected fundamental values of the international community — were at considerable variance with elements set forth in article 53. It went beyond the framework of that article and lacked the backing of State practice. Also, given the lack of consensus in the international community on which norms fell within the category of general principles of law, further studies seem warranted to determine whether general principles of law could form the basis of jus cogens.
Turning to “Succession of States in respect of State responsibility”, he said it was foreseeable that codification of rules of international law in that field would be difficult, given limited international practice relating to the succession of State responsibility and the complex political and historical contexts in which such limited practice had occurred. Further discussion was also needed on whether there was real urgency for the Commission to embark on codification of that topic at the current stage. Regarding “scope” in draft article 1, he supported limiting that topic to State responsibility and succession of States, excluding responsibility of international organizations and succession of Governments. The rules of international law on “State liability” should also be kept out of the scope, with it focusing entirely on secondary rules of “State responsibility”.
PETR VÁLEK (Czech Republic), on “Protection of the atmosphere”, said that while he believed that the problem of climate change was one of the most serious challenges being faced, action was needed that required the full engagement of others, rather than the International Law Commission. The real issues at stake were the underlying problems leading to climate change, such as interaction between the oceans and the atmosphere, and the impact of human activities on the climate. The Commission has no competence on that matter. He also said he was not convinced that there was a branch of international law on the protection of the atmosphere.
Regarding “Immunity of State officials from foreign criminal jurisdiction”, he said that the year’s decision on the report, as well as draft article 7, demonstrated that it was an uneasy task to identify established rules under international customary law. He welcomed the adoption of draft article 7, voicing appreciation for its commentary which elucidated several points on the contentious issue. He also welcomed the decision not to include the crime of aggression in draft article 7. On the crime of corruption, he shared the view of the commentary of the draft article that it should not be regarded as an act performed in an official capacity and did not need to be included.
MARIA TELALIAN (Greece), aligning herself with the European Union, said that draft guideline 9 on “Protection of the atmosphere” aimed to ensure compatibility and complementarity among rules on the protection of atmosphere and rules stemming from other branches of international law, such as trade and investment law, the Law of the Sea, and human rights law. However, the additional formulation of similar sectoral guidelines, specific for each of the above mentioned branches of international laws, should be avoided since they could quickly become outdated through the continuing evolution of relevant State practice and case law.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, she voiced concern about the apparently irreconcilable divergence of views on the issue of exceptions to immunity ratione materiae, which had led to the rather unusual recourse to a recorded vote. Noting that despite the heated debate, the majority of members had endorsed the systemic approach to the institution of immunity, she said that in contemporary international law, the rules on immunity should strike a balance between respect for the sovereign equality of States and the stability of international relations. As well, it should also need to preserve the essential interests of the international community as a whole, one of which was undoubtedly to combat impunity for the most serious crimes under international law.
On “Peremptory norms of general international law”, she welcomed the pivotal importance recognized by the Special Rapporteur to the acceptance and recognition by States of the peremptory character of a norm for it to qualify as a jus cogens norm. According to article 53 of the Vienna Convention, peremptory norms were part of general international law. Therefore, the draft conclusions should contain a definition of the notion of general international law as its exact meaning and scope were far from being settled. In particular, its relationship to customary international law and normative multilateral treaties deserved further elaboration.
Regarding “Succession of States in respect of State responsibility”, she added that since relevant State practice was not abundant in that area, the Commission might encounter difficulties in identifying applicable rules and would have to fill relevant gaps, engaging in progressive development of international law to a great extent. Highlighting articles 3 and 4 proposed by the Special Rapporteur in his first report, she said that there was a major difference between those provisions and the corresponding provisions of articles 8 and 9 of the 1979 Vienna Convention on State Succession with Respect to Treaties.
ALINA OROSAN (Romania), speaking on “Immunity of State officials from international criminal jurisdiction”, said that it had been included in other discussions of the Committee. She noted the decision of the Commission to analyse that matter from the perspective of the codification and development of international law. The relevant concepts were limited, as could be seen in the work on a decision on draft article 7. As mentioned last year, she said she was in favour of distinguishing between immunity ratione personae and immunity ratione materiae. She appreciated the identification of acts within an official capacity that could not be covered by immunity ratione materiae and could thus be prosecuted, she said, adding that she agreed that the uncertainty that existed called for future work in the Commission.
CLAUDIO TRONCOSO REPETTO (Chile), on “Protection of the atmosphere”, said that the twenty‑first century had shown that it was not enough to address the protection of the environment in general. The protection of the atmosphere was increasingly important and it was closely related to the protection of the environment. Carelessness about that threatened humanity’s existence on the planet. The Special Rapporteur had organized meetings with scientists to better instruct the Commission on those complex matters. It was a scientifically proven fact that atmospheric pollution and human activity was responsible for global warming. The provisional adoption of draft guideline 9 was very relevant. Paragraph 3 established a special rule when paragraphs 1 and 2 were applied. It established that attention must be given to persons and groups vulnerable to atmospheric degradation, such as indigenous persons, people of low‑lying coastal areas, and small island developing States affected by sea‑level rise.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said that, with regards to immunity ratione personae, a customary norm that accounted for limitations or exceptions had not been identified. As in all previous reports, the Special Rapporteur had undertaken work on the practice of States, the work of the Commission and national legislation. The fifth report had been the object of an interesting discussion considering the scope of the work of the Commission itself. The matter of exceptions from the immunity of State officials was not easy. Fundamental principles, including the sovereign equality of States and the fight against impunity must be considered. The limitations to ratione materiae should be established, and to accept otherwise would bring immunity close to impunity.
On the topic of “Peremptory norms of general international law” (jus cogens), he said that the Vienna Convention on the Law of Treaties was the point of departure to determine the criteria. There were six draft conclusions proposed by the Special Rapporteur, including one to have the Commission change the name of the topic from jus cogens. On draft conclusions 4 through 9, the Commission had decided to forward them to the Drafting Committee. On the second report, it seemed relevant to change the name of the topic in line with the classical terminology found in article 53 of the Vienna Convention.
Regarding “Evidence before international courts and tribunals”, he said that the matter should be addressed with a flexible approach, as the applicable standard of proof might vary according to the nature of the disputes. Regional and universal practice that already existed should also be taken into account.
ANDRZEJ MISZTAL (Poland), on “Protection of the atmosphere”, said the Commission’s conclusions, particularly in the context of the principle of systemic interpretation, enshrined in the Vienna Convention, article 31 paragraph 3 (c), were generally applied. “We are not sure whether it is absolutely necessary to repeat them,” he added. The commentary to draft guideline 9 paragraph 1 also resembled typical commentaries to article 31 paragraph 3 (c). Referring to draft guidelines 10 to 12 proposed by the Special Rapporteur, he said he had difficulty with the point that general international law actually contained the principle of mutual supportiveness. Providing separate guidelines that referred to the trade and investment law, the Law of the Sea and the human rights law might create significant danger of moving beyond the scope of the topic which dealt with legal norms related to the protection of the atmosphere.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he noted that the Commission adopted by recorded vote draft article 7 relating to crimes in respect of which immunity did not apply. That was quite unusual, but could also be considered as an effort which attempted to strike a balance between the law related to immunities and the need for combating impunity for the most heinous crimes under international law. “We agree that this issue goes to the heart of the understanding of international law as a system,” he said. Implementing prevention and punishment regarding the most serious crimes under international law was without doubt in the interest of the international community. Whether draft article 7 drew balance between codification and progressive development required further evaluation.
With respect to “Peremptory norms of general international law”, he said that the concept of regional jus cogens was in contravention with the notion of jus cogens itself and therefore should not be accepted. It could not be reconciled with the paramount prerequisite of jus cogens, namely: acceptance and recognition by the international community of States. An illustrative list of norms had already been done in the past works of the Commission. On the adopted draft conclusions, he said it was quite controversial to insert into draft conclusion 7 paragraph 2, the notion of a “very large majority of States”, whose acceptance and recognition was required for the identification of a certain norms. The Commission could consider conclusion 8, paragraph 1 of the topic “Identification of customary international law” as an important source of inspiration.
With regard to “Succession of States in respect of State responsibility”, he said that the issue of State succession as the practice of States had been complex and very difficult from the perspective of the successful codification and progressive development of international law. Treaties relating to State succession enjoyed relatively narrow support. The 1978 Vienna Convention on Succession of States in respect of Treaties counted with only 22 States parties and had entered into force 18 years after its signature. Moreover, the 1983 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts had not entered into force yet. The Commission must take into account those circumstances to achieve significant outcome on that topic.
THEMBILE ELPHUS JOYINI (South Africa), addressing “Peremptory norms of general international law” (jus cogens), said that the Commission had made substantial headway into creating a framework for the acceptance and recognition of peremptory norms. The Commission’s recognition of the general nature of peremptory norms, contained within the current draft conclusion 2, accurately captured the ideas inherent to that doctrine, namely that they were hierarchically superior and universally applicable. The draft conclusions took a methodical approach towards laying out the framework for identifying peremptory norms of international law. The second report provided an excellent survey of the current jurisprudence, academic writing and State practice with respect to identifying peremptory norms of general international law.
On “Immunity of State officials from foreign criminal jurisdiction”, he said that a careful study must be made by the Commission on the possible limits to be set to immunity ratione personae and immunity ratione materiae in the draft articles. Draft article 7 referred to crimes under international law in respect of which immunity from foreign criminal jurisdiction ratione materiae did not apply. The draft article contained two paragraphs, one that listed the crimes in paragraph 1 and one that identified the definition of those crimes in paragraph 2. Paragraph 1 listed the crimes which, if committed, would prevent the application of such immunity from criminal jurisdiction to a foreign official, even if those crimes had been committed by the official acting in an official capacity. Thus, draft article 7 complemented the normative elements of immunity from criminal jurisdiction, ratione materiae, as defined in draft articles 5 and 6.
Turning to “Protection of the atmosphere”, he said that such protection should be addressed by international law as far as possible. It was evident that the area of protection had evolved through treaty making as well as State practice, giving rise to customary law norms. Nevertheless, such development had not always been systematic and consistent. Specialized legal instruments had been developed that addressed particular aspects of human interference with the atmosphere, without necessarily considering the body of international environmental law holistically.
On “Succession of States in respect of State responsibility”, he said that he welcomed the two draft articles on the scope and use of terms that had been provisionally adopted by the Commission. Those articles were very helpful in setting a clear outline of the topic. Although State succession was becomingly an increasingly rare occurrence, the work of the Commission on that topic should make a valuable contribution by bringing clarity to the legal issues that States affected by State succession might face.
MINNA-LIINA LIND (Estonia), noting that “Protection of the atmosphere” affected all human beings, said the new text of draft article 9 and the preambular paragraphs created a link between the rules relating to that issue and other relevant rules of international law. The reference to the principles of “harmonization and systemic integration” aimed to avoid conflicts between any new developing rules on protecting the atmosphere and other legal fields. Furthermore, the new guideline 9 addressed the plight of those who might find themselves in vulnerable situations because of atmospheric pollution and atmospheric degradation. Children, elderly and poor segments of national populations, in particular, should be mentioned.
On the “Immunity of State officials from foreign criminal jurisdiction”, she stressed that immunities should not be implemented in a way that sought to shield individuals from accountability for the most serious crimes. Welcoming the inclusion of torture, enforced disappearance and apartheid as separate crimes to the list under draft article 7, she expressed regret that the Drafting Committee had decided not to also include the crime of aggression, mostly due to the pending activation of the Kampala amendment on aggression by the Assembly of States Parties to the Rome Statute. Heads of State and Government and Ministers for Foreign Affairs should enjoy immunity ratione personae from the exercise of foreign criminal jurisdiction, which was intended to enable the conduct of international relations.
On the topic of “Succession of States in respect of State responsibility”, she said the Commission’s work would shed more light on the question of whether there were rules of international law governing both the transfer of obligations and the transfer of rights arising from the international responsibilities of States for wrongful acts in situations of succession of States. That work should follow the main principles of succession of States concerning the differentiation of transfer of a part of a territory, secession, dissolution, unification and creation of a new independent State. More in‑depth research into that issue was needed.
JAMES KINGSTON (Ireland), aligning himself with the European Union, acknowledged the work of the Special Rapporteur in his fourth report on “Protection of the atmosphere”.
With regard to “Immunity of State officials from foreign jurisdiction”, he voiced his concern that the Commission had been internally divided on the adoption of draft article 7 and its commentaries, which resulted in a vote being held on its adoption. While the Report contained an extensive discussion of practice, the groundwork for detailed consideration of the question of non‑application of immunity was not fully in place prior to the 2017 session. Accordingly, the resultant draft article 7 might not be fully grounded in widely accepted State practice. Thus, further information on practice relating specifically to the non‑application of immunity would be helpful. For those reasons, the Commission should continue to consider the basis for and content of draft article 7 in conjunction with the provisions on procedures and safeguards at its next session, with a focus on State practice.
RENÉ LEFEBER (Netherlands), addressing “Immunity of State officials from foreign criminal jurisdiction”, stressed that national legislation was highly relevant for the determination of the existence of a rule of custom. Voicing support for the view that there was a trend towards the recognition of exceptions to immunity ratione materiae at the national and international level, he welcomed the concept proposed in draft article 7 in respect of which immunity ratione materiae should not apply. International crimes fell inherently outside the scope of acts in official capacity and, therefore, should not be susceptible to the plea of immunity. Nevertheless, he said he shared the concern of some members of the Commission regarding the choice to include a limitative list of crime.
FIRAT SUNEL (Turkey), addressing “Protection of the atmosphere”, said that the guidelines the Commission was developing might bring added value to that topic. However, it should still acknowledge work already concluded, including existing treaties. The Commission should focus on better streamlining the existing legal framework and avoid imposing additional obligations on States. Guideline 4, on environmental impact assessment, obliged States to ensure that an environmental impact assessment was undertaken of proposed activities under their jurisdiction or control that were likely to cause a significant adverse impact in terms of atmospheric pollution and atmospheric degradation. That guideline, which must be treated with caution, required further consideration.
ANDREI METELITSA (Belarus), on the topic “Immunity of State officials from foreign criminal jurisdiction”, said that draft article 7 had quite rightly left open the question of whether or not an exception to immunity was the customary norm. He stated that, in his opinion, it was not, due to the lack of sufficient practice confirming the presence of such a norm. Highlighting various cases brought before the World Court to illustrate his position, he also disagreed with the inclusion of torture and forced disappearances in the list of crimes in draft article 7. Noting that the Rome Statute contained four crimes, he said that was also borne out by the final document of the United Nations 2005 World Summit, adopted by consensus, in presence of 152 Heads of State and Governments.
JOSÉ MARTÍN Y PÉREZ DE NANCLARES (Spain), with regards to “Protection of the atmosphere”, said that he saw no problems with the content of the new preambular paragraphs, but questioned their placement. However, he did not see the relevance of draft guideline 9 in an instrument for the protection of the atmosphere. That guideline simply referred to the relationship between different fields of international law, without favouring the atmosphere. Among other things, it was uncertain if the principle of harmonization fell under the aegis of international law, while in paragraph 2 the word “rules” was once again being used mistakenly as a synonym of a source of international law. Moreover, it was not a matter of persons or groups being “particularly vulnerable to atmospheric pollution and atmospheric degradation”, but that they were vulnerable to the effects of atmospheric pollution and atmospheric degradation.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said the Commission should make a clear distinction on whether it was acting on a de lege lata or a de lege ferenda basis. In any case, it should avoid giving the impression of creating law. There was no doubt about the consideration as customary international law of the immunity of former Heads of State and of Government and Ministers for Foreign Affairs, he noted, but added that the same could not be said about exceptions and limits to the immunity ratione materiae. State practice was scarce and legal consensus could not be found either. If the Commission intended to make a de lege ferenda proposal, the least that could be asked was whether there was agreement within that body on that. Otherwise, the proposal would be stillborn.
MAHE’ULI’ULI SANDHURST TUPOUNIUA (Tonga), commenting on “Protection of the atmosphere”, said that while there were existing complex regimes in international law that addressed climate change and ozone depletion, the fragmented approach they presented remained a challenge in the efforts to protect the atmosphere through concerted efforts at the national, regional and international levels. As had been acknowledged in numerous studies and reports, including the fourth report by the Special Rapporteur, small island developing States were particularly susceptible to the impacts of climate change. The protection of the atmosphere required coherent efforts and actions.
Paragraphs 1 and 2 of draft guideline 9 provided practical solutions in dealing with the fragmented nature of the existing regimes, he continued. Those texts identified the relevant areas of law and encouraged States to interpret and apply existing obligations under international law with those relating to the protection of the atmosphere in a harmonious manner. The inclusion of the phrase “including inter alia” was essential to ensure the list was one that was not exhaustive, as future developments might reveal other areas of law that might be important.
STEPHEN SMITH (United Kingdom), on the topic “Protection of the atmosphere”, noted that existing agreements had proved to be flexible enough to address new challenges as they had arisen. An example could be found in the adoption of the Kigali amendment to the Montreal Protocol in 2016, extending the accord’s scope to include greenhouse gases alongside ozone-depleting substances. Draft guideline 9 cited the rules of international trade and investment law, the Law of the Sea and international human rights law as indicative, not exhaustive examples. However, including those specific topics implied their special relationship with the topic. The draft guideline also made a potentially unhelpful reference to certain provisions of the Vienna Convention, he said, noting his preference for the more balanced approach taken by the 2015 Paris Agreement on Climate Change which reflected the principle of “common but differentiated responsibilities and respective capabilities”. Draft guideline 9 could undermine the evolution of such principles, he warned.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said that the exceptions to immunity ratione materiae listed in draft article 7 lacked sufficient support in State practice to be regarded as established under customary international law. Not only was there a lack of State practice to justify that conclusion, it was clear that the International Law Commission (ILC) itself was deeply divided on the issue, as demonstrated by the provisional adoption by recorded vote. As such, draft article 7 could not be considered as reflecting existing international law (lex lata) or even the Commission’s settled view of existing international law on the topic. Given the topic’s vital importance, ILC must clearly indicate the draft articles which it considered to reflect existing international law and those which it did not, whether on the basis of representing the progressive development of international law or amounting to proposals for “new law”. If that were the case, the appropriate form for the outcome of the Commission’s work should be a treaty, he emphasized.
ELAHEH MOUSAVI-NEJAD (Iran), on the topic of “Immunity of State officials from foreign criminal jurisdiction”, noted that the manner in which draft article 7 had been adopted by the Commission indicated that there had been a fundamental division of opinions on certain points. The Special Rapporteur had “stepped into the path of progressive development of international law” by proposing the draft article which had not benefited from sufficient State practice. “This is why we do not agree that the draft article represents an appropriate means of addressing this issue,” she said.
Instead of enlisting specific crimes, such exceptions were best to be applied solely regarding the most serious crimes of international concern, she continued. As stated prior by some Commission members, the report did not provide a comprehensive pertinent jurisprudence on the non‑applicability of immunity ratione materiae by mostly relying on cases of civil proceedings and not penal proceedings. It was not possible to assume that the existence of criminal responsibility for any crimes under international law committed by a State official automatically precluded immunity from foreign criminal jurisdiction. Immunity did not depend on the gravity of the act in question, she said, urging the Commission to proceed on the topic with caution.
HANNAH WEIR (New Zealand) said on “Immunity of State officials from foreign criminal jurisdiction” that she supported the view that there were limitations and exceptions to such immunity rationae materiae. There should be further consideration on the suggested alternative approach of reformulating draft article 7 on the basis of an obligation to waive or prosecute international crimes. That could explore a possible duty of a State to waive the immunity of its officials before criminal courts of a foreign State or fulfil its obligation to prosecute its own officials, reducing any impunity gap.
Regarding “Protection of the atmosphere”, she said rules of international law relating to that topic should be identified, interpreted and applied coherently. In so doing, it would be important to consider specific contexts in which existing obligations had arisen. Guideline 9 provided a useful starting point, highlighting techniques in international law for addressing tensions between legal rules and principles. She welcomed recognition in the new preambular paragraphs of the close interaction between the atmosphere and ocean, as well as the special situation of low‑lying coastal areas and small island developing States due to sea level rise.
ANET PINO RIVERO (Cuba), commenting on “Protection of the atmosphere”, urged that it be clearer that draft guideline 2 should be applied without prejudice to the precautionary principle as well as common but differentiated responsibilities, among other matters. In draft guideline 7, on the “Intentional large-scale modification of the atmosphere”, she questioned the admissibility of that, even if done with prudence and caution, if it led to atmospheric pollution.
Turning to the draft articles on “Immunity of State officials from foreign criminal jurisdiction”, she said it was a controversial issue, and there was a political dimension that made it more complicated. She went on to say she agreed with the notion of immunity ratione personae and its application during a person’s term of office. However, it was important to study further the procedural aspects of immunity where it referred to its review and waivers, among other matters.
JEEM LIPPWE (Federated States of Micronesia), associating himself with the Pacific small island developing States, turned to the topic, “Protection of the atmosphere”, stressing that it was crucial for the Commission to establish that the numerous fields of international law did not exist in silos, but instead linked to and interacted with each other with regularity, depth, and intensity. Noting that the draft guideline 9 provisionally adopted by the Commission was a consolidation of the original draft guidelines 9, 10, 11, and 12, he added: “It is unfortunate that this consolidation has deprived the draft guidelines and their commentaries of the rich and dedicated discussions and conclusions about international trade law, international investment law, international human rights law, and the Law of the Sea.”
He also underscored the myriad of challenges his country faced as a small island developing State, reiterating the effects of greenhouse gases. Coral reef bleaching, unpredictable migration of valuable fish stocks and deep disruptions of the maritime food chains were also of concern. He welcomed paragraph 3 of draft guideline 9, which highlighted the vulnerabilities of people in small island developing States.
KERSTIN PUERSCHEL (Germany), regarding “Immunity of State officials from foreign criminal jurisdiction”, said the principle of individual responsibility for international crimes was one of this century’s greatest achievements. Germany had been on the forefront of that issue since the Nuremberg trials in the 1940s. However, the fight against impunity was far from won. ILC’s work on that issue must strike a careful balance between the sovereign equality of States and the importance of international relations. While the Special Rapporteur had addressed some of the concerns raised last year, his report still contained several major flaws, including the lack of a clear separation between existing exceptions to customary international law, and what the Special Rapporteur viewed as a desirable development to those laws. The gravest methodological problems relating to draft article 7 had not been resolved by the Drafting Committee, she said, expressing concern that it implied the article reflected existing norms of customary law. The Commission should not portray its work as a codification of existing customary law. Draft treaties — not just draft articles — must be drawn up to determine international law.
The present moment was a pivotal one for the Commission’s work, she said, but underlined the fact that it received its mandate from Member States. While it could make suggestions about international laws to be adopted by States, its mandates “must not be blurred”. It was States, not the Commission, that created international law, and any substantial changes to such laws must be agreed by States through treaties. Adding her support for the criticism levied at draft article 7, she said that while the exception for immunity for corruption-related crimes had been dropped, the reasoning for dropping it pointed to the fact that the list of crimes to which immunity did not apply was not exhaustive and would not ensure legal certainty. The list of such crimes seemed arbitrary; it omitted the crime of aggression — which was recognized under the Rome Statute — but included the crime of apartheid. The implementation of such exceptions would raise serious difficulties for national courts, she stressed, adding that it remained unclear to which standard of proof courts would need to adhere.
JU YEONG JANG (Republic of Korea), on “Protection of the atmosphere”, voiced support for the insertion of three preamble paragraphs. The texts reflected a consideration of the close relationship between the atmosphere and the oceans and focused on the special situation of low‑lying coastal areas and small island developing States due to rising sea levels. In addition, in the context of sustainable development, the texts highlighted the interests of future generations in the long-term conservation of the quality of the atmosphere. As well, guideline 9 embodied the idea that the three legal processes — identification, interpretation and application of the rules of international law related to the protection of the atmosphere — should be considered in a harmonious and integrated manner.
Turning to ”Immunity of State officials from foreign criminal jurisdiction”, she said that there were no limitations or exceptions with respect to immunity ratione personae. Meanwhile, she noted the divergence of opinions regarding limitations or exceptions to immunity ratione materiae such as lex lata or lex ferenda. In that regard, she pointed out that it was necessary to pay attention to the jurisprudence of the International Court of Justice on that issue.
AMIT HEUMANN (Israel), focusing on “Protection of the atmosphere”, said he objected to an integrative approach. Each subject should be addressed in the context of the appropriate legal regime. He also stated his opposition to the unnecessary linkage of separate legal regimes and creating potential overlap, as each legal sphere constituted lex specialis to be applied to the appropriate situation and had different standards and guiding principles. That was particularly relevant with respect to associating international law on the protection of the atmosphere and international human rights law, due to the numerous and significant differences between them.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he expressed concern that the Court’s work had failed to accurately reflect customary international law. That concern related to the draft articles themselves, which were inconsistent with widely recognized principles governing that field and the manner in which they had been adopted. He also said he shared the view regarding the problematic nature of the treatment of immunity ratione personae and exceptions to immunity ratione materiae in draft article 7. In regards to persons enjoying immunity ratione personae during their term of office, the draft articles specified three persons of the “troika”, according to customary international law. However, the group of high-ranking State officials who enjoy such immunity were not limited to the troika. The draft articles should not include any exceptions or limitation to immunity from foreign criminal jurisdiction and draft article 7 should be deleted.
INTAN DIYANA AHAMAD (Malaysia), on “Protection of the atmosphere”, said that, given the physical relationship between the atmosphere and the oceans, it should be noted that the United Nations Convention on the Law of the Sea only addressed atmosphere-related issues in a limited and unilateral way when it came to that relationship. Therefore, a new preambular paragraph was necessary to coordinate the laws on protection of the atmosphere and the oceans. Regarding the special situation of low‑lying coastal areas and small islands, she also voiced her support for the new preambular paragraph 6 as it addressed the disadvantaged geographical positions of the affected States. Regarding draft guideline 9, the list of laws reflecting the interlinkages between various international laws should not be exhaustive and should be considered on a case‑by‑case basis.
Turning to the topic of “Immunity of State officials from foreign criminal jurisdiction”, she said she agreed with the Special Rapporteur that there were discrepancies in the characterization of a particular act as a limitation. She also said that draft article 7 should be dealt with cautiously by the Commission, as the scope and parameter of the crimes committed were still undefined and had not attained the status of customary law. Thus, draft article 7 should be deliberated further.
NGUYEN THUY GIANG (Viet Nam), stressing that “Protection of the atmosphere” was a topic of pressing concern for the international community, said that the term “atmosphere” needed to be more clearly defined so as to distinguish it from other territorial domains. Clarification was needed on whether the scope of “atmosphere” should include the area above sea areas. It was also necessary to develop a guideline to deal with situations of overlap in the scope of application of the rules of the protection of the atmosphere and the existing rules on the protection of the environment in general.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, she said that codification of the rules on the matter needed to be undertaken carefully with due regard to the principles of sovereign equality and non‑intervention into the domestic affairs of States. As well, the need for the maintenance of international peace and security, while ensuring the balance between the benefits of granting immunity to State officials and the need to address impunity, also needed to be considered. The exceptions to criminal jurisdiction warranted further debate, she said, voicing support for the rules established under draft article 7; that text reflected existing legal principles enshrined in various international treaties.
MARK A. SIMONOFF (United States), on “Protection of the atmosphere”, said the topic was not a useful one for the Commission to address, as various longstanding instruments already provided general guidelines to States in their development, refinement and implementation of treaty regimes, as well as very specific guidance tailored to discrete problems relating to atmospheric protection. There was concern that any exercise to extract broad legal rules from environmental agreements concluded in particular areas would not be feasible — and might undermine carefully negotiated differences among regimes. Such an exercise and the topic itself was likely to complicate rather than facilitate ongoing and future negotiation, thereby potentially inhibiting State progress in the environmental arena.
Also expressing concern that all four reports produced on the topic had taken an expansive view on it, he said the most serious of the United States’ concerns related to the purported identification of “obligations” or “requirements” in contravention of the 2013 understanding that work on the topic would not impose new legal rules of principles on current treaty regimes. This year, the Commission had strayed even further by provisionally adopting a guideline purporting to inject consideration of the atmosphere not only into the interpretation and application of treaties, but more broadly into the development of any new rule of international law.
ANDITYA HUTAMA PUTRA (Indonesia), addressing “Protection of the atmosphere”, said that he was pleased to note the growing attention the Commission was paying to the issue of the environment. Voicing support for the statement made by the Marshall Islands on behalf of the Pacific small islands developing States, he underscored the comment that the Commission should not restrict itself to discussing traditional topics. Instead, it should look into other pressing concerns of the international community as a whole. The matter of protecting the atmosphere was a difficult legal issue, with a number of legal instruments in place. Those legal instruments were piecemeal, and not all of them had been warmly welcomed by States. The Commission was in a wonderful position to offer to States to evaluate or synergize between the existing legal instruments. It was the most appropriate body to close the legal gaps between those instruments.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said there should be no impunity for grave international crimes. The Commission had been working cautiously on that contentious topic in order to strike a balance between the fight against impunity for grave international crimes and the need to foster inter‑State relations through the principle of sovereign equality. The prosecution of one country’s officials by another country’s courts would potentially raise problems in relation to the principle of sovereign equality. The complexity and sensitivity of the topic, particularly draft article 7, was obviously reflected in how the draft article was provisionally adopted by voting. The differing views on those important provisions, specifically concerning limitation and exception to immunity, made that provision worth revisiting.
COUMBA GAYE (Senegal) said of “Protection of the atmosphere” that she acknowledged the complexity related to its technical nature. The Report examined concurrent application of international law, as well as international trade law, investment law and the Law of the Sea. The Special Rapporteur had sought to shed light on the scope and relevance of that issue. The various branches were interdependent and, once established and clarified, should help to overcome the risk of legal fragmentation. It was part of general international law, and the Commission, in probing the issue of protection of the atmosphere, should refer to the doctrine and case law of general international law. Overlapping of rules of existing law should be avoided. With regard to the link between environmental protection law and the Law of the Sea, the paper mills case on the Uruguay River [Pulp Mills on the River Uruguay (Argentina v. Uruguay)] was a perfect example, she said. Furthermore, developing countries should be the subject of special attention with regard to vulnerability and climate change.