Continuing its consideration of the report of the International Law Commission today, Sixth Committee (Legal) delegates critiqued the Commission’s working methods while parsing the nuances in draft conclusions that had been adopted on the first cluster of topics under discussion. (For background, see Press Release GA/L/3570.)
For smaller Member States like Slovenia, that country’s representative said that it is very useful to have tools such as the draft conclusions on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”. They not only provide a comprehensive tool for treaty interpreters, but the high degree of authority behind them compensates for a lack of local capacity, he said.
The representative of Greece lauded those draft conclusions for precisely complementing and clarifying the meaning of the existing provisions of the 1969 Vienna Convention on the Law of Treaties. However, she urged caution regarding the use of concepts that have been developed for that body of law; they might be limited in scope.
The representative of Estonia commended the draft conclusions on “Identification of customary international law” for maintaining the balance between precision and flexibility, enabling them to apply to the vast range of possible situations. In particular, she concurred with the Commission that the practice of international organizations does contribute to the formation of rules of customary international law since such organizations often serve as arenas or catalysts for State practice.
As they had in previous debates, delegates also offered suggestions for the improvement of the Commission’s working methods.
The representative of Spain expressed doubts concerning the Commission’s methodological premise. Spotlighting what he described as the lack of ambition that characterized the Commission’s work, he also acknowledged that the political environment might not be conducive to such ambitions. Still, the Commission must reflect on the real possibility of achieving anything in its field.
Sudan’s representative pointed out that several delegations had expressed unwillingness to include the topic of “Universal criminal jurisdiction” in the Commission’s programme of work. That decision appears to be a hijacking of a matter that was still under consideration, he said, calling on the Commission not to enter the sphere of serving political objectives.
“How striking it is to note that, when it comes to gender parity in its composition, the International Law Commission seems to be stuck in 1948,” the representative of Brazil said, pointing out that of the 229 members that the Commission has had since being founded in 1948, only seven are women — a total of only 3 per cent.
His call to Member States to overcome this shortcoming was echoed by Ireland’s delegate who welcomed the progress in doubling the number of women to four in the latest elections. However, four is not a number that permits complacency, particularly when it represents less than 12 per cent of the current membership, he pointed out, also reminding delegates that less than 7 per cent of the candidates put forward were women.
Also speaking today were representatives of Portugal, Czechia, Mauritius, Slovakia, Germany, India, Belarus and Argentina.
The Sixth Committee will next meet at 10 a.m. on Wednesday, 24 October, to continue consideration of the first cluster of topics from the report of the International Law Commission.
Statements on Cluster I
PAULO ALEXANDRE COLAÇO PINTO MACHADO (Portugal) said that he is pleased to note the inclusion in the Commission’s programme of work the new topic “General principles of law”. The willingness of the International Law Commission to revisit the sources of international law is welcomed. General principles of law reflect the basic values of the international society and should inform not only legal norms but also the political action of the present. Although both doctrine and jurisprudence have contributed to the clarification of many aspects of this topic, general principles of law are sometimes a disputed mystery about their content and application.
On “Identification of customary international law”, he commended the draft conclusions as a whole. Offering brief comments on the topic, he said that the opinio juris sive necessitatis, as the psychological or subjective element of customary international law, is not easy to be inferred. But without this element, what remains is a mere practice and not a legal norm. This element should be considered without any postmodern anxieties about the “mysteries of subjectivity”. The convictions that the non‑compliance with a certain practice will result in international responsibility is one good indicator of opinio juris.
On “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said that concerning draft conclusion 13 on the pronouncements of expert treaty bodies, he took good note that it applies only to bodies established under a treaty, excluding organs of international organizations.
MARTIN SMOLEK (Czechia),commenting on the Commission’s focus on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” as a particular aspect of the interpretation of treaties in light of treaty practice, underscored that the Commission’s conclusions resulting from this exercise do not affect the validity of the relevant provisions of articles 31 and 32 of the Vienna Convention on the Law of Treaties. It also does not affect their understanding as explained in the commentaries of the Commission which served as a basis for the adoption of those articles by the Diplomatic Conference. As his delegation has stressed on other occasions, the role of subsequent agreements and subsequent practice can only be properly understood in the context of the entire set of rules of treaties’ interpretation contained in articles 31 and 32.
On “Identification of customary international law”, he said that the draft conclusions are succinctly formulated and well organized. He expressed his appreciation that the Special Rapporteur and the Commission placed emphasis on the methodological issues concerning the process of determination of both elements of norms of customary international law, general practice and opinio juris. The elaboration of these aspects is important, in view of the tendency to allege the existence of a particular rule of customary international law without proper verification of the existence of both constitutive elements of customary international law. On the concrete conclusions, he also noted his appreciation for the detailed response, prepared by the Special Rapporteur, to comments by States to the draft conclusions adopted on first reading in 2016. The comments expressed by States indicate that large parts of the draft conclusions reflect the consensus of States.
Turning to the subject of “General principles of law”, he said that in the last year’s syllabus on this topic, this source of international law has been used for more than a century, but its nature, scope and methods of identification remain unclear. Therefore, he expects that the Commission will provide States with practical and concrete conclusions and commentaries based on analysis of State practice, jurisprudence and views of scholars on the topic.
On the topic “Universal criminal jurisdiction”, he noted that in previous years, the Sixth Committee has proposed to refer this topic to the Commission, as it deserves a thorough level analysis and the Commission is the most suitable place for such a task.
Commenting on “Sea‑level rise in relation to international law”, he said that his Government is fully aware of the global dangers of climate change, including sea‑level rise and its consequences for low‑lying coastal States and small island developing States and their populations. However, the topic has a predominantly scientific, technical and political character. It should be considered by relevant technical and scientific bodies and by an intergovernmental forum having a mandate to deal with the Law of the Sea, so that the integrity of that regime is preserved.
RISHY BUKOREE (Mauritius), aligning himself with the African Group, stressed the significant contribution of the Commission to the progressive development and codification of international law. Also commending the Commission for holding half of its 2018 session in New York, which facilitated closer interactions with Member States, he encouraged it to hold other meetings around the world. Expressing support for the initiative to include sea‑level rise in its programme of work, he said it is important to consider the legal implications of sea‑level rise for the Law of the Sea as well as the questions relating to migration.
Turning to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he thanked the Special Rapporteur for his work and welcomed the recommendations. Also thanking the Special Rapporteur of "Identification of customary international law", he said the Commission’s work would influence future practice. Concurring with conclusion 6 and its subsequent commentaries, he noted that the Commission relies on feedback from Member States. While this requires the Commission to circulate questionnaires to Governments and request relevant documents and invite comments, it is important to take into consideration questions of State capacity to fulfil those requests.
METOD SPACEK (Slovakia), addressing “Subsequent agreements and subsequent practice”, said that the 13 draft conclusions adopted by the Commission have the potential to enhance the relevant provisions of the Vienna Convention. He underlined that subsequent practice and agreements may be an indicator of whether it is the will of parties to a treaty to give terms a dynamic interpretation that evolves over time. However, he expressed scepticism about the additional value of specific aspects reflected in draft conclusions 11, 12 and 13; they are drafted by a mere reference to applicable rules of the treaty in question.
Turning to “Identification of customary international law,” he said the 16 draft conclusions adopted are delicately drafted and the extent of commentaries is suitably chosen, adding that he fully endorses the Commission’s recommendations to the General Assembly. Acknowledging that work on the topic have been based on the two‑element theory, he said that while the two elements are interconnected, they must be assessed and ascertained separately, which is duly reflected in the draft conclusions. Some open questions remain in terms of the implications of draft conclusion 16, with a certain geographical link among the States applying particular customary international law. The Commission eventually left open an option for customary international law other than regional, subregional or local, but the commentary does not contain any examples of that.
Regarding “General principles of law”, he welcomed the decision to include the topic in the Commission’s programme of work. That work should focus on the role of general principles of law in international law and how to identify their elements, rather than trying to provide any artificial enumeration of the principles.
On “Universal criminal jurisdiction”, he noted that the decision to include the topic in the long‑term programme of work gives hope that the consideration of legal aspects related to universal jurisdiction will, at least partially, soon go where it really belongs.
Commenting on “Sea‑level rise in relation to international law”, he expressed concern with the topic and outlined approach. The Commission should not restrict itself to traditional topics; it could also consider those that reflect new developments in international law and the international community’s concerns. However, the approach should first follow the Commission’s recommendation regarding criteria for topic selection. He was not convinced that the topic is at a sufficiently advanced stage in terms of State practice to permit progressive development and codification, he said. In addition, legal questions arising potentially from sea‑level rise fall within the scope of the Law of the Sea and should be addressed primarily in that framework.
ELSADIG ALI SAYED AHMED (Sudan), associating himself with the African Group, said of “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” that his delegation attaches great importance to the subject.
On “Identification of customary international law”, he noted that the 16 draft conclusions offer practical guidance on the existence or non‑existence of rules of customary international law. Customary international law must be properly identified. He voiced his support for the approach adopted by the Commission to focus on two elements: the existence of general practice and its acceptance as law. They are the two main conditions for the existence of customary international law. Draft conclusion 2 notes that the presence of only one element does not suffice.
Regarding “Universal criminal jurisdiction”, he pointed out that several delegations had expressed unwillingness to include this topic. The Committee’s decision appears to be a hijacking of a matter that was still under consideration. He expressed his concern regarding the unjust use of this principle and the expansion of its scope and application to serve political objectives and he called on the Commission not to enter such a sphere.
GEORGE RODRIGO BANDEIRA GALINDO (Brazil), aligning himself with the Community of Latin American and Caribbean States (CELAC), expressed appreciation for the holding of the Commission’s seventieth session in both Geneva and New York. Highlighting one of the side events, “Seven women in seventy years”, he pointed out that of the 229 members that the Commission has had since 1948, only seven are women - that is only 3 per cent. “How striking it is to note that, when it comes to gender parity in its composition, the International Law Commission seems to be stuck in 1948,” he said, encouraging Member States to overcome this shortcoming.
Turning to the revitalization of the relationship between the General Assembly and the Commission, he called for innovative measures. “This very debate” should be revitalized, he said, adding that delegates should refrain from replicating the legal debates held within the Commission. The Commission should listen attentively to the policy guidance from the Assembly and focus its energies on studies that will address the most pressing needs of the membership. Further, holding meetings regularly in New York would increase and diversify the engagement of States in their projects.
The draft conclusions on “Identification of customary international law” offer a valuable guidance on the identification of a sometimes elusive, but fundamental, source of international law, he said. Agreeing with the Commission’s recommendation on the need to follow up the suggestions contained in the Secretariat memorandum on ways and means for making the evidence of customary international law more readily available, he added that an online database with State practice relations to international law, based on information received from States would constitute a positive step. The drafts strike a balance between precise guidance and reasonable flexibility.
Regarding the draft conclusions on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he described them as a valuable toolkit for a topic in which an in‑depth study was indeed lacking. The conclusions recognize that the interpretation of a treaty consists of a single combined operation, placing appropriate emphasis on the various means of interpretation indicated in articles 31 and 32 of the Vienna Convention. Further, he drew attention to the issue of the number of parties that must actively engage in subsequent practice in order to establish an agreement.
BORUT MAHNIČ (Slovenia), commenting on “Subsequent agreements and subsequent practice”, said its conclusions and commentaries provide a comprehensive tool for treaty interpreters. For smaller Member States like Slovenia, it is very useful to have such tools with a high degree of authority behind them, which compensates for a lack of local capacity. It is true that the commentaries are very complex and academic in places, but such a basis is needed to approach the complex task of interpretation with the relevant background.
On “Identification of customary international law”, he said that although it was not the task of the Commission to identify specific rules of customary international law, which in any case would be a difficult if not an impossible task, its work on the criteria for identifying them will certainly be most useful.
Turning to “Sea‑level rise in relation to international law”, he welcomed the topic, noting that climate change is a far‑reaching phenomenon with an impact on various aspects of how human societies are regulated internally and internationally. Considering the international scientific reports on temperature rise, which is causing the rise in sea level, there is an immediate need to analyse this topic from the perspective of international law and to agree on possible conclusions and recommendations for future action.
KERLI VESKI (Estonia), welcoming the adoption of 13 draft conclusions on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties“, said she agreed with the Commission that the dividing line between the interpretation and the amendment or modification of a treaty is in practice “difficult, if not impossible to fix”. Further development of the commentaries to the draft conclusions would have been more useful. It is necessary to keep in mind the principle of pacta sunt servanda - and the stability of treaty relations in general - as subsequent practice may stray further and further away from the original wording or interpretation of a treaty.
Turning to “Identification of customary international law”, she said that because the draft conclusions should apply to the vast range of possible situations, the balance between precision and flexibility has been drawn well. Regarding draft conclusion 4, paragraph 2, she concurred with the commentaries that international organizations are entities established and empowered by States to carry out certain functions. They often serve as arenas or catalysts for State practice. Therefore, the practice of international organizations does contribute to the formation of rules of customary international law. Reflecting this in the conclusions is relevant.
MARIA TELALIAN (Greece) said the draft conclusions on “Subsequent agreements and subsequent practice” precisely complement and clarify the meaning of the existing provisions of the Vienna Convention. However, she urged caution regarding the use of concepts that have been developed for that body of law; they might be limited in scope. Treaty interpreters must identify the relevance of the different means of interpretation and give them appropriate weight in relation to each other. She welcomed the establishment of a presumption that favours the Commission’s interpretation and reaffirmation that modifying a treaty by means of subsequent practice has not been generally recognized. Caution should be taken when addressing the legal significance of the silence or inaction in the face of a subsequent practice of a party to a treaty, she said.
Regarding the Commission’s 16 conclusions on “Identification of customary international law”, she said conclusion 15 on the persistent objector is questionable in relation to the rules of jus cogens and in relation to the broader category of the general principles of international law. Hence, the Commission’s commentary to conclusion 15 should have addressed that matter. Paragraph 3 of the commentary to conclusion 15 does not put into question the applicability of the persistent objector rules over time, she said. Turning to conclusion 16, the Commission should have distinguished between novel particular customs, whose scope of application refers to State behaviour not already regulated by specific international law, and derogatory particular customs.
“Sea‑level rise in relation to international law” is not a topic that has developed to the stage of approaching codification, she said, expressing concern at the way the Commission applies to the present case the criterion of “emerging State practice” in regard to the topic. However, should States decide to entrust the Commission with the study of the topic, the Commission should preserve the integrity of the 1982 United Nations Convention on the Law of the Sea which sets out the legal framework within which all activities in the ocean and seas should be carried out.
CHRISTOPHER EICK (Germany) welcomed the report on the topic “Subsequent agreements and subsequent practice in relation to the interpretation of treaties,” saying the conclusions give useful, practice‑based advice regarding the conditions under which subsequent practice and agreements can contribute to the interpretation of treaties. The project contributes to the codification of international law, particularly due to the increasing number of international organizations.
Turning to “Identification of customary international law”, he expressed support for the careful and cautious approach taken by the Commission to avoid identifying purported rules as customary international law that do not result from general and consistent practice. While reaffirming the primary role assigned to States in setting practice and expressing opinio juris in the draft conclusions, he also expressed support for the helpful reference to the contribution of practice of international organizations in certain cases. That is particularly important when it comes to supranational institutions, he noted, expressing appreciation for the explicit reference in the commentary to the elevated significance of practice of the European Union.
VISHNU DUTT SHARMA (India) noted that the draft conclusions on “Subsequent agreements and subsequent practice” include extensive analysis of articles 31 and 32 of the Vienna Convention. Commenting on the conclusions, he said, among other things, that paragraph 1 of conclusion 2 mentions that the Vienna Convention articles are reflective of customary international law. In an attempt to bring clarity to the meaning and scope of the interpretation of these articles, paragraph 2 of conclusion 5 states that the conduct of non‑State actors does not constitute subsequent practice under articles 31 and 32. Paragraph 3 of conclusion 7 reflects the presumption that the subsequent agreement or practice cannot amend or modify the treaty. Further, according to an observation in paragraph 1 of conclusion 10, such agreements or practice may, but need not be, legally binding. He stated his agreement with such observations.
Turning to “Identification of customary international law”, he said that customary international law is a formal source of international law recognized in the Statute of the International Court of Justice. However, unlike the treaty provisions, it may not be sometimes so easy to find out what the applicable customary international law may be in a given case or situation. In the absence of authentic guidance or methods by which the evidence of the existence or the process of formation of a customary international law principle could be appreciated and identified, the conclusions adopted by the Commission would be of relevance to help fill the gap.
He congratulated the Commission for having celebrated its seventieth anniversary this year in both New York and Geneva. The event in Geneva was a unique opportunity to share views with legal advisers of Member States, the Commission members and other international law experts.
JAMES KINGSTON (Ireland) said that he congratulated the Commission on the successful conclusion of events in New York and Geneva commemorating the Commission’s seventieth anniversary. In looking to the future of the Commission, one of the questions worth considering is that of composition, in particular the continued lack of women on the Commission. While it was welcome progress to see the number of women double to four in the latest elections, this is not a number that permits complacency, particularly when it represents less than 12 per cent of the current membership and when it is recalled that less than 7 per cent of the candidates put forward were women.
Turning to “Subsequent agreements and subsequent practice”, he aligned himself with the European Union. Regarding conclusion 6, which indicates how subsequent agreements and subsequent practice as a means of interpretation are identified, he welcomed further clarification in the commentaries to this conclusion. The examples of conduct that do not constitute subsequent agreement or practice of treaty interpretation set out in the second sentence of paragraph 1 — which deals with temporary non‑application of a treaty or modus vivendi — are illustrative only.
Regarding “Identification of customary international law”, he aligned himself with the European Union and welcomed the memorandum prepared by the Secretariat on ways and means for making the evidence of customary international law more readily available. This is a very useful resource, he said, highlighting Ireland’s support for the Commission’s recommendation that the Secretariat continue to make available information contained in the annexes to the memorandum through an online database to be updated periodically.
He also welcomed the inclusion of the topic “Universal criminal jurisdiction” on the Commission’s long‑term programme of work. Given the legal and technical nature of the topic, the Commission is well placed to assist States in identifying the basic principles of universal jurisdiction, including a definition of that principle, as well as its nature and scope.
Affirming his openness to further study of the subject “Sea‑level rise in relation to international law”, he said that rising sea levels pose significant challenges across the globe, for low‑lying countries and small island developing States in particular. An in‑depth analysis of existing international law carried out by a study group could assist the international community’s understanding of the international law rules applicable to sea‑level rise, particularly its effect on statehood and in relation to the protection of affected persons.
CARLOS JIMENEZ PIERNAS (Spain) expressed doubts concerning the Commission’s methodological premise. Spotlighting the lack of ambition that characterized the Commission’s work, he said it results in ambiguous normative content. The Commission must reflect on the real possibility of achieving anything in the field of codifying and progressively developing international law, he said, also acknowledging that the political environment might not be conducive to such ambitions.
Highlighting the Commission’s decision to limit the work on “Subsequent agreements and subsequent practice” to the firm ground of the relevant provisions of the Vienna Conventions, he welcomed the reference to the consensus. Adding that a balanced treatment has been given to the practices of international organizations, he expressed agreement with the European Union regarding the warning about the Union’s notable specificities. Recalling previously expressed disagreement about conclusions 6 to 10, he called for them to be more precise while delivering sufficient normative content.
Turning to “Identification of customary international law”, he thanked the Special Rapporteur and the Secretariat. While satisfied with the draft conclusions, he expressed some reservations about the methodological decision to opt for a text that declared at the outset it is not of a regulatory nature. The draft conclusions accurately reflected international practice, he said, commending the binary characterization related to the identification of customary international law and the crucial references to the figure of the persistent objector. Noting that deliberate inaction was initially included in the text of draft conclusion 6, he said he regretted that it was removed, though mentioned in the commentaries. Given the importance of intentionality, an explicit reference in the body of the conclusion would have been more enlightening.
ANDREI METELITSO (Belarus) said that given the significance of the documents on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” and “Identification of customary international law”, he supported the proposal of France to have these documents accessible by the General Assembly and also published officially as United Nations documents along with the summary and opinions and positions of Member States.
On “Subsequent agreements and subsequent practice”, he said that in paragraph 19 of the commentary to conclusion 2, the conduct of one State is practice only if it is adopted or applied by at least one State. In the commentaries to conclusions 7, 8 and 9, he pointed out that the cases that are looked at by international criminal tribunals, international human rights courts and national courts do not have direct significance for the direct interpretation of treaties.
Turning to “Identification of customary international law”, he noted that his comments are very similar to those on the previous topic. This is a topic that covers a lot of areas and the documents demonstrate the excellent preparation. The Special Rapporteurs have ensured consistency. In commentary 5 to conclusion 3, it is pointed out that there is a general principle that the action of State organs should be evaluated in every case. Decisions that have been turned over by higher courts should not be viewed as the conduct of States, he said.
Regarding other decisions of the Commission, he said he did not challenge the inclusion of the proposed topics. However, regarding “Universal criminal jurisdiction”, he noted the Commission is already working on two broad topics: “Crimes against humanity” and “Immunity of State officials from foreign criminal jurisdiction”. The work of the Special Rapporteurs on these two topics is not something that is fully agreed upon. In other words, people do not agree and there is a difference in approaches taken by the Rapporteurs themselves. Including universal criminal jurisdiction should not be carried out until work on these other two topics has been completed, he said.
MARIO OYARZABAL (Argentina), welcoming the exhaustive nature of the Commission’s work on “Subsequent agreements and subsequent practice”, said that the topic shows the dynamic between treaties and how States comply with their treaty obligations. He also spotlighted the way in which various stakeholders in international agreements have been addressed, noting conclusion 5 and its reference to non‑State actors. That strikes a balance between the increasing participation of non‑governmental organizations and other actors, while also preserving the sovereign power of States. Regarding the presumption that the intention of parties is to interpret and not modify a treaty, he said he was in favour of such modifications on the understanding that it is the conduct of the States on a daily basis that must prevail over the written form.
Turning to “Identification of customary international law”, he said that some conclusions contained innovations. Just as in the Commission’s work on “Subsequent agreements and subsequent practice”, this draft also addressed the conduct of non‑State actors; draft conclusion 4.3 reflected the role of such actors in the international arena appropriately. Also concurring with the Commission on the role granted to international organizations in creating customary international law in draft conclusion 4.3, he said it was necessary to clarify acts carried out within international organizations as opposed to external acts.