Concluding Second Cluster from Report, Delegates Urge Commission to Expand Work on Protection of Atmosphere
The subject of the environment dominated the Sixth Committee (Legal) debate today with speakers discussing the ongoing degradation of the atmosphere and the gaps and discrepancies in international law when protecting the environment during occupation, as review of the second cluster of topics of the International Law Commission’s annual report concluded and review of the third cluster began. (For background, please see Press Release GA/L/3583.)
Introducing the third cluster of topics of the report, Eduardo Valencia-Ospina, Chairperson of the Commission, provided the Sixth Committee with a summary of the work carried out on “Protection of the environment in relation to armed conflicts”, “Succession of States in respect of State responsibility” and “Immunity of State officials from foreign criminal jurisdiction”.
He noted that the second report of the Special Rapporteur on “Succession of States in respect of State responsibility” addressed such issues as the legality of succession and their general rules. However, during the Commission’s debate on the matter, the scarcity of State practice presented significant challenges to the work of the Commission. State practice that is available is context‑specific and frequently politically sensitive. He urged States to provide the Commission with information on their practice that would be relevant to its examination of the topic.
The Special Rapporteur’s report on “Immunity of State officials from foreign criminal jurisdiction” commenced a discussion of the procedural aspects of immunity from foreign criminal jurisdiction, he continued. It also focused on matters such as the timing of the consideration of immunity and the acts of the authorities of the forum State that may be affected by immunity, as well as the identification of the organ competent to decide whether immunity applies.
He also drew attention to the Special Rapporteur’s first report on “Protection of the environment in relation to armed conflicts” which not only gave a general introduction to the protection of the environment under the law of occupation, but also proposed three draft principles specifically dealing with that matter. One of those principles is based on the principle of usufruct, as found in article 55 of the 1907 Hague Regulations [Hague Convention (IV) on War on Land and its Annexed Regulations, 1907]. Its modern equivalent — the principle of sustainable use — was also included with regards to the actions of an occupying power.
As speakers took the floor to address the complex topics in the third cluster, many delegations focused on the impact of armed conflict and occupation on the environment and the need for a legal framework that addressed the matter.
Commenting on the report on “Protection of the environment in relation to armed conflicts”, Brazil’s delegate said the matter was an extremely complex topic of the law of occupation. Co‑application of various areas of law is particularly challenging during a protracted occupation. During occupation, international humanitarian law does not automatically override other international obligations related to human rights and the environment. With that in mind, the Commission should not seek to change international humanitarian law, but instead fill the gaps that relate to environmental protection while taking recent developments in international law into account.
Echoing those sentiments, Portugal’s delegate said that even though occupation is supposed to be temporary, it can result in irreversible damage. Humans and animals can be damaged by policies put in place and entire populations can be affected both during an occupation and long after its expiration. The current legal framework lacks specificity, he emphasized, noting that it derives from a legal framework put forward at a time when the knowledge in that area was very different from what exists today.
The delegate of the Czech Republic pointed out that the Commission’s work fails to clarify its direction or whether rules on environmental protection could be taken out of context of other rules applicable to armed conflicts without the risk of altering their meaning. She also expressed concern with an approach that selected rules from various areas of international law and then discussed them in connection with armed conflicts. Some of these rules may be applicable in all situations, including those of armed conflicts. However, raising them specifically in the context of the present topic may give a false impression that is not yet the case.
Addressing “Succession of States in respect of State responsibility”, Slovenia’s delegate drew attention to the applicability of the relevant rules where the predecessor State continues to exist. When that occurs, the continuator State continues the legal personality of the predecessor State and is therefore legally the same State, she said. As the Special Rapporteur pointed out, in this case a general rule of non‑succession applies to the continuator State, although there are possible exceptions.
The representative of Poland, speaking on “Immunity of State officials from foreign criminal jurisdiction”, underscored the need to find common ground with regard to draft article 7, which relates to crimes to which immunity does not apply. With that in mind, paragraph 324 of the report is a good place to start, he said, noting that it aims to address the need to combat impunity for the most serious international crimes while respecting sovereign equality, a source of State officials’ immunity.
The Sixth Committee also concluded its debate on the second cluster of topics from the Commission’s report, which included “Protection of the atmosphere”, where the focus on environmental issues continued, “Provisional application of treaties” and “Peremptory norms of general international law (jus cogens)”. Here too, views on the legal framework addressing environmental concerns were discussed.
Tonga’s delegate said that the issue of “Protection of the atmosphere” has implications for the well-being of the terrestrial and marine environments. Carbon emissions alone are not enough to cause an increase to 1.5 degrees Celsius in the Earth’s temperature, he warned, calling for a preventive approach to mitigate the cumulative impacts of global warming. The draft guidelines could provide useful guidance to States in addressing the impacts of climate change, he said.
Echoing those sentiments, the representative of Colombia said that the atmosphere is the greatest national resource on the planet and its degradation is a cause of great concern. Yet, while treaties existed that dealt with the matter, there is still no legal framework that is consistent. He highlighted the fact that the Commission had not addressed key concepts and areas such as the principle of the “polluter pays” with regards to State responsibility, nor had it addressed the problem of black carbon, which is responsible for 3.2 million premature deaths every year.
Also speaking today were representatives of Greece, Federated States of Micronesia, Chile, South Africa, El Salvador, Israel, United Kingdom, Peru, Republic of Korea, Australia, Viet Nam, Malaysia, Turkey, Iran, Mozambique, Nicaragua, Slovakia, Sudan, Cuba, Sweden (also for Denmark, Finland, Iceland and Norway), Austria and Japan, as well as the Permanent Observer of the Holy See.
The Sixth Committee will next meet at 10 a.m. on Wednesday, 31 October, to continue consideration of the third cluster of topics from the report of the International Law Commission.
Statements on Cluster II
MARIA TELALIAN (Greece), commenting on “Provisional application of treaties”, said the adoption of an entire set of 12 guidelines, as well as the text of the draft model clauses proposed by the Special Rapporteur, are a significant step towards bringing more clarity on the rules applicable to the matter. Turning to the legal effects of provisional application, she said she agreed with the statement in the commentary to draft guideline 6, that provisional application is not intended to give rise to the whole range of rights and obligations deriving from the consent of a State or an international organization bound by a treaty. Yet the commentary does not sufficiently explain where the difference lays between provisional application and entry-into-force. It should be further elaborated to address questions that may arise in practice.
Turning to “Peremptory norms of general international law”, she said this year’s report, while going beyond the law of treaties, addresses in a pragmatic and holistic way the consequences and the legal effects of jus cogens, despite the scarcity of relevant State practice. On draft conclusion 17, there is no doubt that Security Council resolutions, as is the case with any resolution adopted by an international organization, cannot conflict with a peremptory norm of international law.
She then turned to “Protection of the environment in relation to armed conflicts”, noting that the report contains an in-depth analysis of some of the rules of the law of occupation pertaining to the protection of the environment. That focus was often based on the evolutionary approach, given that at the time of their inception, environmental concerns were not at the forefront of international law. The report highlights the multiple links between the law of occupation and applicable rules of international human rights law, such as the right to health or general principles of international environmental law. The occupying power has the obligation to protect the environment and to preserve city life and maintain orderly government. Regarding draft article 20 and the sustainable use of natural resources in occupied territories, she said, adding it is not easy to formulate a single provision capturing all situations.
On “Succession of States in respect of State responsibility”, she said the report proposes carefully considered draft articles based on the general principles of the law of State responsibility. Although the concept of “newly independent States” referred to in draft article 8 is well known by international lawyers, a definition of the latter should be inserted in draft article 2, as is already the case with article 2, paragraph 1(f) of the 1978 Vienna Convention on Succession of States in respect of Treaties.
Regarding “Immunity of State Officials from foreign criminal jurisdiction”, she said that the Special Rapporteur has eloquently shown that the proper examination of procedural aspects of immunity is of crucial relevance to the entire set of draft articles, especially in view of the scarcity of international and national case law and doctrine on the topic. Given the diversity and variety of national laws and procedures, she said there is no need to define the term “criminal jurisdiction” for the purpose of the present draft articles.
JEEM LIPPWE (Federated States of Micronesia) expressed concern that the Commission had imposed stringent limits on the work that the Special Rapporteur on “Protection of the atmosphere” could do. While it is beneficial to limit the scope of a topic in order to make the work manageable and useful, it is not appropriate to limit that scope for primarily, if not purely, political reasons, especially when those limits undercut much of the value that the work can provide to the international community. On draft guideline 10, he voiced disappointment that there is no reference in the guideline itself to the responsibility of States for failing to implement their obligations under international law relating to the protection of the atmosphere.
Finally, on draft guideline 12, he said he supported the decision to refine the original draft as it is too limited. In numerous domestic and regional systems around the world, the traditional knowledge of indigenous peoples and local communities play a key role in dispute settlement, particularly with respect to disputes pertaining to environmental matters. This is the case throughout the Pacific, the Americas and in Africa, among other regions, he said, encouraging the Commission to consider language, during its second reading of the drafts, in either guideline 12 or its commentary, that acknowledges the relevance of the traditional knowledge of indigenous communities.
VILIAMI VA'INGA TŌNĒ (Tonga), addressing “Protection of the atmosphere”, said that the newly proposed draft guidelines speak to implementation, compliance and dispute settlement, which are the most important aspects of the law of the atmosphere. Noting with great interest draft guideline 11, he said that for a small island developing State like Tonga, achieving and maintaining effective compliance remain challenges due to a lack of capacity and resources. Access to financial support is a major challenge for developing and least developing States, he continued, emphasizing the importance of international cooperation in providing capacity-building and sustained financial support to developing States.
He reaffirmed the need to settle disputes in a peaceful manner, adding that “it is only through such an approach that a holistic picture of the issues can be painted before the relevant tribunal or judicial body and an informed decision made”. Protecting the atmosphere has implications for the well-being of the terrestrial and marine environments. Noting that carbon emissions alone are not enough to cause an increase to 1.5 degrees Celsius in the Earth’s temperature, he called for a preventive approach to mitigate the cumulative impacts of global warming. The draft guidelines as adopted on first reading can provide useful guidance to States in addressing the impacts of climate change.
JUAN CUELLAR TORRES (Colombia), associating himself with the Community of Latin American and Caribbean States (CELAC) on the first cluster of the report, then addressed “Protection of the atmosphere” in the second cluster, noting that the Special Rapporteur has made great strides on the subject. The atmosphere is the greatest natural resource on the planet and its degradation is a source of great concern. Although several treaties deal with the subject of the atmosphere, there is still no consistent legal framework. The work of the Commission is to derive norms for current practice, but the scope has been limited. It has not addressed such matters regarding the responsibility of States, for example the “polluter pays” principle. Furthermore, black carbon was not addressed, he said, describing it as a lethal part of global air pollution and responsible for 3.2 million premature deaths every year. As a result, it should have been included in the work.
He welcomed the inclusion of the topics of “Sea-level rise in relation to international law” and “Universal criminal jurisdiction” in the long‑term programme of work and noted that they should be included in the current programme of work. However, the number of topics should be limited to take into account the capacity of States to study them in depth, he said.
MARIANA DURNEY (Chile) said that the little time allowed to study the International Law Commission report before its review in the Sixth Committee did not allow delegates to address in the desired depth the broad range of implications of each matter. Her remarks could also be found on the United Nations Meetings Papersmart site.
On “Peremptory norms of general international law (jus cogens)”, she said her delegation required the commentary on the draft conclusions on these topics, and after considering these it would be able to add its observations. With regards to draft conclusion 10, she noted that the first two paragraphs follow the Vienna Convention on the Law of Treaties of 1969, which she welcomed. However, with regards to the first paragraph, its second sentence notes that a treaty that is in opposition to a jus cogens norm when such treaty is concluded “creates no form of right or obligation”. This is not appropriate. It should at least be clarified as it implies that nullity applies ipso facto, she said.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, she called for the Special Rapporteur to continue the development of this topic, adding that she eagerly awaits the future work. This year the Special Rapporteur presented her sixth report. Although it does not contain new draft articles, it does set out a summary of the discussions held by the Commission and the Sixth Committee on draft article 7 relating to areas of international law regarding which immunity ratione materiae does not apply.
SANDEA DE WET (South Africa), aligning herself with the African Group, said of “Protection of the atmosphere” that there is no doubt that human and natural environments can be adversely affected by certain changes in the condition of the atmosphere mainly caused by the introduction of harmful substances. These, in turn, can cause transboundary air pollution and ozone depletion, as well as changes in the atmospheric conditions leading to climate change. It is therefore opportune that the Commission seeks to provide guidelines that may assist the international community as it addresses critical questions relating to transboundary and global protection of the atmosphere. She welcomed the proposed three additional draft guidelines concerning implementation, compliance and dispute settlement.
Turning to “Peremptory norms of general international law (jus cogens)”, she said that it constitutes one of the fundamental pillars of the rule of law in the international legal order and sets a minimum standard against which the conduct of States should be measured. It is important that those values which are accorded a special status in the relations of States should be cherished, protected and enforced. The comprehensive and wide‑ranging third report on the consequences and legal effects of jus cogens is a testament to the large volume of work covered since the first and second reports. The third report does much to move towards a common understanding of jus cogens.
HÉCTOR ENRIQUE JAIME CALDERÓN (El Salvador), commenting on “Protection of the atmosphere”, said references to cooperation in draft guideline 9 must include references to a wider range of actors and not just States and international organizations. El Salvador is implementing legislation related to environmental and atmospheric protection and is pursuing efforts to achieve the Sustainable Development Goals. The country’s judicial bodies have issued pronouncements on international environmental law, including on State obligations to protect natural resources. The Commission must ensure the Spanish version of its report accurately reflects language included in other versions.
On “Provisional application of treaties”, he said the draft guidelines help develop understanding of the issue but noted that language used in draft guideline 3 requires further clarification. Noting his agreement with the Special Rapporteur on the relevance of establishing judicial mechanisms for situations in which reservations are formulated regarding treaty application, he said ongoing work on this topic will lead to significant advances towards codification of the item.
Turning to “Peremptory norms of general international law (jus cogens)”, he also noted his agreement with provisions in draft conclusion 10 that an existing treaty becomes void and terminates if it conflicts with a new peremptory norm of general international law. He called for the inclusion of the language “not of a jus cogens character” in draft conclusion 15 in order to maintain the possibility of a replacement of one norm of jus cogens by another.
REUVEN EIDELMAN (Israel), addressing “Protection of the atmosphere”, reiterated his objection to the integrative approach proposed by the Special Rapporteur in previous reports. Such a linkage between separate legal regimes is both unnecessary and inappropriate, he said, recalling that last year his delegation expressed its concern that the inclusion of issues relating to implementation, compliance or dispute settlement within the contours of that specific topic would not only be unnecessary but also create significant and unfortunate potential for abuse. Against that background, he said draft guidelines 10, 11 and 12 may be both unnecessary and potentially counterproductive. However, he expressed satisfaction with the progress achieved thus far in the negotiations on the implementation of the Paris Agreement on Climate Change.
On the topic “Provisional application of treaties”, he said his delegation is still in the process of reviewing the draft guidelines and preparing written comments on them and is reserving the right to address that issue until such time.
Turning to the issue of “Peremptory norms of general international law (jus cogens)”, he said that inherently sensitive topic must be handled with great care, adding his concern that the methodology used by the Special Rapporteur relied largely on theory and doctrine rather than relevant State practice. “The Commission has rightly chosen to engage in codification of existing law rather than its progressive development,” he said, rejecting the incorporation of elements in the draft conclusions that may be clearly identified as proposals for “progressive development” of law, such as draft conclusion 14. The Drafting Committee’s decision not to include draft conclusions concerning the exercise of domestic jurisdiction over a jus cogens crime and the question of immunities was welcomed. Draft conclusions 22 and 23 do not reflect existing customary law and deviate significantly from the scope of the topic. Meanwhile, draft conclusions 2, 3 and 4 should be further fine‑tuned to mirror the very stringent requirements involved and to limit the potential for politicization and fragmentation.
ELAINE GORASIA (United Kingdom), speaking on “Protection of the atmosphere,” recalled her country’s doubts about the utility of the Commission’s work on that topic, noting that existing international obligations already address many issues dealing with environmental protection. The Montreal Protocol on Substances that Deplete the Ozone Layer — recently extended to include greenhouse gases — is an example of an existing legal framework that can be tailored to evolving global challenges. She also expressed concern about the ambiguity of draft guideline 9 on the interrelationship with other obligations in international law. Regarding the three draft guidelines adopted by the Commission this year, it was difficult to see what value they added. However, nothing in the United Kingdom’s stance on this matter should be taken as putting into question its commitment to protecting the atmosphere and environment.
On “Provisional application of treaties”, she welcomed the fact that more thought will be given to model clauses. Welcoming the inclusion of draft guidelines concerning reservations made to provisionally applied treaties and the termination or suspension of such provisional application, she said an analysis of the practice of States and international organizations would be of assistance for a comprehensive consideration of the issue. While agreeing with the text of draft guideline 6, paragraph 5 of the commentary lacks clarity. It would be helpful if the Commission could explain in more detail in what ways a provisionally applied treaty is “not subject to all rules of the law of treaties”.
Turning to “Peremptory norms of general international law (jus cogens)”, she said the Commission has made considerable progress in moving the topic forward. Emphasizing that it is not an easy topic, she urged the Commission to work cautiously and ensure that it spends enough time on the matter. Stating that it may be premature to comment on draft provisions that have yet to be adopted by the Commission, she said her delegation is attaching a written annex to its oral statement that should be seen as its formal position.
ANGEL HORNA (Peru), speaking on “Protection of the atmosphere”, said that the fifth report allowed the Commission to adopt, on first reading, one draft preamble and 12 draft guidelines with their associated commentaries. While his delegation continues to assess this work, he welcomed the fact that, in the preamble, the Special Rapporteur referred to the close interaction between the atmosphere and the oceans. This had taken into account recent developments within the General Assembly that confirmed the effect of climate change on the oceans, he said.
On “Provisional application of treaties”, he expressed his thanks to the Special Rapporteur with the presentation of his fifth report and a bibliography on the topic, which allowed the Commission to adopt on first reading 12 draft guidelines with commentaries. His country continues to consider this work, and it has also made comments on previous occasions including the Peruvian experience in the matter.
Turning to “Peremptory norms of general international law (jus cogens)”, he said that he thanked the Special Rapporteur on the presentation of his third report and noted that there had been some progress made in the matter under his leadership. The draft conclusions were presented to the Commission for information. At this stage, he noted one concern regarding immunity. While it is important that this work bears in mind the Commission’s work on “Crimes against humanity” and “Immunity of State officials from foreign criminal jurisdiction”, it would be important to also avoid overlaps with such subject areas, especially with regard to immunity from foreign criminal jurisdiction.
MS. HYE MI KIM (Republic of Korea) said it is appropriate that draft guideline 10 on “Protection of the atmosphere” makes a distinction between the national practice of “obligation” and “recommendations” by dealing with them separately. She said that paragraph 3 of the commentaries “clearly notes which provisions constitute the obligations that are stipulated in draft guidelines 3, 4 and 8 for protecting the atmosphere”.
On “Provisional application of treaties”, she welcomed the adoption of draft guidelines concerning the reservations and termination or suspension of provisional application and said those guidelines must be reviewed cautiously. She also said she doubted there should be a set of draft model clauses on this topic, warning that such clauses from the Commission can encourage States to apply a treaty or part of a treaty provisionally.
The draft conclusions on “Peremptory norms of general international law” concern some of the most challenging aspects of international law, she noted, adding her concern over the large number of suggested draft conclusions. Some parts of those conclusions “need to be clarified” and the use of the term “conflict” related to sources of international law is ambiguous. “States can often have different characterizations and interpretations of their own actions such as the use of force,” she noted, adding this can lead to disagreements in terms of whether “conflict” exists”.
CARY SCOTT-KEMMIS (Australia), on “Provisional application of treaties”, underlined the importance of the Commission’s work in providing clarity to the international community on this subject and he thanked the Special Rapporteur for his extensive work. He also welcomed the invitation for States to submit comments on the draft guidelines, adding that he looks forward to studying the proposal in more detail.
Turning to “Peremptory norms of general international law (jus cogens)”, he welcomed consideration of draft conclusions 10 through 23 and the accompanying commentaries. He reiterated his appreciation to the Special Rapporteur for his extensive work on the topic and his efforts to address the possible effects of jus cogens, especially with regard to the 1969 Vienna Convention on the Law of Treaties and other international instruments.
NGUYEN THU GIANG (Viet Nam), on “Protection of the atmosphere”, said that the Commission’s work resulted in important draft guidelines, namely on international trade and investment law, Law of the Sea and international human rights law. The Commission should incorporate the concept “common concern of human kind” in draft guidelines as mentioned in the Paris Agreement on climate change. “It is high time for the Commission and Special Rapporteur to revisit the matter,” she said, noting that the Paris Agreement was finalized in 2015. Instead of passively reacting to evidence, international tribunals must actively seek assistance from experts when dealing with environmental disputes.
Turning to “Provisional application of treaties”, she voiced her support for the implementation of draft guidelines despite their non‑binding nature. She called for greater clarity on draft guideline 4 regarding issues of national sovereignty in the applicability of treaties. The Commission should carefully address concerns over the violation of treaties as related to items included in draft guideline 9.
On “Peremptory norms of general international law”, she said Viet Nam’s legislation recognizes peremptory norms as a principle to be adhered to when negotiating and entering treaties. She noted that the Commission has attempted to address the issue on a number of occasions and that the issue of jus cogens requires further deliberations. She encouraged further research into the matter and said that unilateral acts are void from the outset.
SITI NUR BAYA JABAR (Malaysia) said her full statement could be found on the United Nations Meeting Papersmart portal. She then turned to “Protection of the Atmosphere”, noting the insertion of three new draft guidelines to address matters relating to the implementation of and compliance with obligations under international law. On draft guideline 10 on national implementation of obligations, she said that national implementation may take many forms. Draft guideline 11 refers to the mechanics and procedures to assist States in adhering to their obligations under international law. However, it is important to recognize challenges faced by developing and least developed countries in the discharge of their international law obligations. Draft guideline 12 emphasizes the important role of scientific and factual evidence in international dispute resolution, she said, adding that she has no objection to the insertion of the three new draft guidelines.
Turning to “Provisional Application of Treaties”, she stressed that the draft guidelines must provide a clear understanding and representation as well as take into account the practice of internal law of States. Malaysia ensures a domestic legal framework is in place before a treaty is binding upon it. On the terms “termination” and “suspension” under the new draft guideline 8, her Government is guided by article 60 of the Vienna Convention. Careful consideration should be given by the affected State in determining the “material breach” whereby it should be a violation of an essential provision of the treaty. As well, the signing of a treaty does not necessarily create a legal obligation when the treaty further requires ratification, accession, approval or acceptance processes. As for draft guideline 5 bis, she said a State may formulate a reservation unless the reservation is prohibited by all or part of the treaty. It is crucial to discern the provisional application of the treaties from the source of obligations as provided by the treaty provision itself.
Turning to “Peremptory Norms of General International Law (jus cogens)”, she said that considering the relevant international laws relating to treaties, parties should be allowed to self‑determine the content of the treaty bearing in mind that it should be in line with peremptory norms of general international law. She also requested the Special Rapporteur to further provide clarification on the issue of the sources of jus cogens and a thorough analysis on the element of modification. Regarding draft conclusion 9, she stressed that the world of expert bodies and scholarly writings as secondary means of identifying a norm of general international law as a norm of jus cogens must be subjected to the recognition of the whole international community of States.
DIGDEM BUNER (Turkey), commenting on “Protection of atmosphere”, said draft guideline 4, although proclaimed to be a present obligation, is a new composition in its entirety within the draft guidelines. She also noted that subparagraph 2(a) of draft guideline 11 is sufficient and accurate in suggesting assistance to States or applying measures in a transparent, non‑adversarial and non‑punitive manner to ensure the State conforms to its obligations.
Turning to “Provisional application of treaties”, she expressed hesitancy over vesting a default binding force in such agreements that could pose a threat to the exclusive power to consent to undertake an international commitment. It could remove the need for taking an approval and create a discouraging effect on the executive authority in initiating and completing ratification with the legislative body. Adding that diverse scenarios due to variable attitudes of numerous parties upon the binding force may lead to unequal consequences, she said this may create legal uncertainty and stability for compliance with treaty norms among the parties.
As for “Peremptory norms of international law (jus cogens), she said non‑derogability should not be criteria for identification but may be a consequence. The “non‑derogability characteristic” prevails over jus cogens as a whole which emanates from the immaturity and lack of sufficient compromise among States on the topic. It is ambiguous in its scope and content, but also abstract in its essence, referring to “the acceptance and recognition of an international community as a whole”, as stated in the Vienna Convention on the Law of Treaties, which does not include any guiding substantial constituent elements to determine such norms.
SATTAR AHMADI (Iran), on “Protection of the atmosphere”, said that the topic is fraught with difficulties as it is tightly interlinked with political, technical and scientific considerations. He considers that the concept of “the common concern of humankind” is more appropriate than the concept of “pressing concern of the international community as a whole” in the fourth preambular paragraph of the draft guidelines. The concept “the common concern of mankind” is a well‑known concept that has already been supported and reflected in the preambular paragraph of the Paris Agreement that was concluded in 2015. He took note of the Commission’s request for observations from States to be submitted by 15 December. His delegation would consider the 12 draft guidelines and commentaries thereto and provide comments in due course.
Regarding “Provisional application of treaties”, he said that article 25 of the Vienna Convention merely offered States the possibility of provisional application without imposition of any obligation. As a result, the provisional application would not serve as a basis for restricting States’ rights about their future conduct regarding the treaty that might be provisionally applied. It is also crucial that the principle of consent prevailing in international law remain to be the core of the present topic. Therefore, provisional application of a treaty by a State party should only be considered as voluntary rather than mandatory. In that context, he noted his agreement with paragraph 82 of the Special Rapporteur’s report that the present guidelines — without detracting from the flexibility inherent in the mechanism of provisional application by overdeveloping the regime set out in article 25 of the Vienna Convention on the Law of Treaties — will merely serve as a practical tool for the growing number of users of international law.
Turning to “Peremptory norms of general international law (jus cogens)”, he said that he is in agreement with draft conclusion 17 that says that binding resolutions of the Security Council do not establish binding obligations if they conflict with jus cogens. As asserted by the Special Rapporteur in paragraph 152, it is generally agreed that the rule of non‑derogation from pre-emptory norms would be equally applicable to Security Council resolutions. In this regard, Article 103 of the United Nations Charter only affirms that in the event of a conflict between the Charter and any other international agreement, the Charter would prevail. Therefore, in the event of conflict between norms of jus cogens and Charter obligations, jus cogens norms remain superior and article 103 of the Charter will not be applied. In this context, those Security Council resolutions are inconsistent with international law and the provisions of the Charter do not create any obligation for States.
ANTÓNIO GUMENDE (Mozambique) said that the International Law Commission is obligated to seek and collect views of Member States and take them into account in various stages of its work. The time between the publication of the Commission’s report and that of its consideration in the Sixth Committee remains relatively short, especially taking into consideration that many topics on the Commission’s agenda require deep analysis by Member States. He expressed concern over the prevailing situation of under‑representation of female experts in the Commission’s membership, which currently stands at less than 12 per cent.
Turning to “Peremptory norms of general international law”, he said that certain values — universal in nature — cannot be negotiated. Certain norms cannot be “contracted out”, he emphasized, adding that they are positioned in the very first place within the hierarchy of the international legal order. These include principles outlined in the Charter of the United Nations, namely the prohibition of use of force, slavery, racial discrimination and torture, among others. These cannot be negotiated, he reiterated, urging States and international organizations to cooperate to bring an end to any breach of jus cogens.
ALINA JULIA ARGÜELLO GONZÁLEZ (Nicaragua), speaking on “Provisional application of treaties”, said the topic is relevant for the streamlining of negotiations between States inter alia. Her country’s Constitution provides that treaties must be adopted by the National Assembly to have legal effect. That rule applies for provisional application, she said, citing the 2010 International Cocoa Agreement and the European Union Central American Association Agreement as examples. While Nicaragua is not a party to the Vienna Convention on the Law of Treaties, it understands that once a treaty comes into force, its provisional application is deemed terminated. She also stressed the importance of dealing with related issues, such as fraud and corruption. Hopefully it will be possible to strike a balance on the topic, enabling the guidelines to become a practical reference for States.
ELSADIG ALI SAYED AHMED (Sudan), on the “Protection of the atmosphere”, said he welcomed the approach of the Special Rapporteur in addressing the interrelationship between “Protection of the atmosphere” and other aspects of international law such as the protection of the oceans. He underscored that the Convention on the Law of the Sea laid the foundation for the protection of the ocean and States should cooperate to preserve it. Since then threats have emerged in the form of rising sea levels, increased acidity and plastic pollution, among others. Some groups are particularly vulnerable to atmospheric degradation and pollution.
On “Provisional application of treaties”, he noted that the Special Rapporteur should have addressed in detail the questions pertaining to reservations and invalidity as well as termination or suspension as a result of breach. Provisional application gives rise to international responsibilities and it is important to distinguish the scope of this and the effects resulting from a treaty’s entry into force. It leads to the question of whether a breach of an obligation arising from the provisional application of a treaty gives rise to international responsibility for the affected State, he said.
Regarding “Peremptory norms of general international law (jus cogens)”, he noted that the report discusses the effects of the application of these norms and their effects on treaty law. The Commission decided to refer to the Drafting Committee draft conclusions 10‑23 that are proposed in the report. He underscored that draft conclusion 20 needed more clarification and asked why there is a need to make a distinction between a breach and a serious breach vis-à-vis the jus cogens rule. Draft conclusion 23, paragraphs 2 and 3 run counter to the rules of immunity for State officials; these are rules that are enshrined in international law, he said.
MANUEL DE JESÚS PIREZ PÉREZ (Cuba), speaking on “Protection of the atmosphere”, said it is appropriate for States to take all relevant measures to protect the atmosphere, ensure that environmental impact assessments are carried out and to carry out cooperation in line with their respective constitutions and legal orders. He expressed concern that the term “recommendations” could lead to erroneous interpretations and suggested that it should be specified explicitly in the text. The reference to sanctions in case of non‑compliance, cited in guideline 11, is something that should be reviewed and given a second look in due course. On dispute resolution, he noted his agreement with the preference to peaceful means of dispute settlement, but there should be reference to good faith as well.
He then turned to “Provisional application of treaties,” which he described as a useful tool for giving immediate effect to a treaty without waiting for national and international requirements to be fulfilled, especially when the purpose of the treaty has a sense of urgency. For Cuba, provisional application would begin on the day of an instrument’s signature. On draft model clauses, he said they ought not to become straitjackets for States or international organizations.
Introduction to International Law Commission Report — Cluster III
EDUARDO VALENCIA-OSPINA (Colombia), Chair of the International Law Commission, introduced the third cluster of the report, noting that it was composed of three chapters on “Protection of the environment in relation to armed conflicts”, “Succession of States in respect of State responsibility” and “Immunity of State officials from foreign criminal jurisdiction”.
On “Protection of the environment in relation to armed conflicts”, he said that in the Special Rapporteur’s first report, she gave a general introduction to the protection of the environment under the law of occupation and addressed the complementarity between the law of occupation, international human rights law and international environmental law. She also proposed three draft principles to be included in a separate section dealing specifically with the protection of the environment in situations of occupation.
Draft principle 19 embeds the obligation of the occupying State to protect the environment in the general obligation to take care of the welfare of the occupied territories, he said. Draft principle 20, based on the principle of usufruct — as found in article 55 of the 1907 Hague Regulations [Hague Convention (IV) on War on Land and its Annexed Regulations, 1907] — also drew on the principle of sustainable use as its modern equivalent. It provided that the occupying State should exercise caution in the exploitation of non‑renewable resources and exploit renewable resources in a way that ensured their long‑term use and capacity for regeneration. Draft principle 21 incorporated the principle not to cause harm to the environment of another State. The draft principles were referred to the Drafting Committee, which provisionally adopted them. The Commission also provisionally adopted nine draft principles numbered 4, 6 to 8 and 14 to 18, as well as the commentaries thereto.
Turning to “Succession of States in respect of State responsibility”, he said that the second report of the Special Rapporteur addressed such issues as the legality of succession and the general rules of succession of States in respect of State responsibility, as well as special categories of State succession to the obligations arising from responsibility. The Special Rapporteur proposed seven draft articles in his second report. During the Commission’s debate, it was noted that the scarcity of State practice on succession of States presented significant challenges to the work of the Commission and that available State practice was diverse, context‑specific and often politically sensitive. It was also observed that not many relevant decisions by domestic and international courts and tribunals were available.
A discussion ensued as to the possibility of identifying an underlying rule applicable to the succession of States, according to which State responsibility did not automatically transfer to the successor State, except in certain circumstances, he said. In that regard, the scope of the possible exceptions to such an underlying general rule of non‑succession was the object of considerable debate.
He underscored that the Commission would appreciate if States, by 31 December, provided the Commission with information on their practice relevant to the succession of States with respect to State responsibility. The Commission would particularly appreciate receiving examples of treaties, including relevant multilateral and bilateral agreements; domestic law relevant to the topic; and decisions of domestic, regional and subregional courts and tribunals addressing issues involving the succession of States in respect of State responsibility.
Regarding “Immunity of State officials from foreign criminal jurisdiction”, he said that this year the Commission had before it the Special Rapporteur’s sixth report, which summarizes the debates in the Commission and the Sixth Committee on draft article 7 (on crimes under international law in respect of which immunity ratione materiae should not apply), provisionally adopted by the Commission last year. The report also commences a discussion of the procedural aspects of immunity from foreign criminal jurisdiction. In particular, it focuses, with respect to procedure, on the timing of the consideration of immunity; the acts of the authorities of the forum State that may be affected by immunity; and the identification of the organ competent to decide whether immunity applies.
It is anticipated that the analysis of the procedural aspects will be completed in the seventh report to be submitted next year, he continued. The debate on the sixth report commenced late in the Commission’s busy schedule at the current session. As can be imagined, the debate on the report will be continued and completed next year. Aside from the general comments that confirm the continuing importance of the topic for States, three essential areas dominated the debate.
The first set of comments concerned draft article 7, he said. Both the circumstances surrounding the adoption of draft article 7, which was adopted by a vote, and the impact that would have on the working methods of the Commission, as well as its future work, were the object of comments. It was considered by some members that the discussion of the procedural aspects of immunity provided pathways for considering further any lingering concerns that remain with respect to the draft article, even though some doubted the feasibility of addressing these matters through procedural safeguards.
The second set of comments related to the procedural aspects as dealt with in the sixth report, he said. Here, the members who spoke generally welcomed the analysis of the Special Rapporteur on procedural issues and looked forward to the draft articles that would be presented by the Special Rapporteur in the seventh report.
The third set of comments addressed procedural safeguards and guarantees, he continued. This aspect was viewed by members who spoke to be crucial to the successful completion of work on the topic. It was noted that a distinction has to be drawn between safeguards ensuring individual due process and other guarantees under international human rights law, along with safeguards that aimed at protecting the stability of international relations and avoiding political and abusive prosecutions. Both aspects required treatment and it was suggested that, for safeguards to be meaningful, they should not only address the consequences of the denial of immunity of the State official generally, but also in the specific context of draft article 7.
He reminded the Sixth Committee that the topic of “Crimes against humanity” was not debated by the Commission this year. A full set of draft articles and a preamble was adopted on first reading during the 2017 session. As is its established practice, the Commission suspends the consideration of topics after first reading to give States an opportunity to carefully review the outcome and to give in‑depth comments for the second reading. Written comments are requested by 1 December, so that the second reading can take place in the summer of 2019, he said.
Statements on Cluster III
CECILIA ANDERBERG (Sweden), also speaking for Denmark, Finland, Iceland and Norway, expressed appreciation for the speed of progress which the Commission took on “Protection of the environment in relation to armed conflicts”. Welcoming the appointment of the new Special Rapporteur, she also said the Commission has proven its commitment to the topic with the establishment of a working group to assist the new Special Rapporteur. The Commission has built on what has been achieved and is facilitating the conclusion of the topic. The Special Rapporteur made the wise decision to focus on one aspect, which is the protection of the environment in situations of occupation, as well as the complementarity of the law of occupation, international humanitarian law and international environmental law.
Turning to “Succession of States in respect of State responsibility”, she noted the Special Rapporteur’s proposed seven new draft articles and said she was pleased the Special Rapporteur has taken into account the comments from the delegates in the Sixth Committee. The transparent cooperation between the Commission and the Sixth Committee is valued. Further, she said she agreed with the Special Rapporteur’s statement that the general theory of non‑succession should not be replaced by a theory of non‑succession but that a more realistic approach is needed.
On the “Immunity of State officials from foreign criminal jurisdiction”, she noted that this year’s report summarized the debate on draft article 7 and addressed some of the procedural aspects. The Commission should strike a balance between the fight against impunity and the need to preserve a legal framework for stability in interstate relations. For the gravest international crimes, no rules of immunity should apply and she reiterated her support for draft article 7 which the Commission provisionally adopted during last year’s session.
NADIA ALEXANDRA KALB (Austria), on “Protection of the environment in relation to armed conflicts”, said that general obligations of an occupying power, as noted in draft principle 19, raise questions as to which additional obligations can be derived from the duty to “take environmental considerations into account”. She said draft principle 21 reduces the obligations of an occupying power to due diligence and called for the principle to be brought in line with the Stockholm Declaration on Human Environment and Protection and the Rio Declaration on Environment and Development.
Turning to “Succession of States in respect of State responsibility”, she said draft article 1 is redundant as it constitutes a general clause on the subsidiary nature of the draft articles. Referring to draft articles proposed by the Special Rapporteur, she questioned if references to newly independent States in draft article 8 are still needed. “It is doubtful whether the proposed draft articles would be acceptable to States,” she warned.
On “Immunity of State officials from foreign criminal jurisdiction”, she said she regretted that it was not possible to present new draft articles despite the importance of the issue. “Austria has always maintained the view that immunity does not hamper investigations short of measures of constraint,” she said, referring to the issue of timing of the consideration of immunity. As long as investigations are not connected with coercive measures against a person enjoying immunity, they are not violating that person’s immunity and are not prohibited by international law.
PATRICK LUNA (Brazil) said that “Protection of the environment in relation to armed conflicts” addresses a crucial but extremely complex topic of international humanitarian law: the law of occupation. The co‑application of different areas of law is not a simple task, particularly during a protracted occupation. He said that in situations of occupation, international humanitarian law does not automatically override other international obligations related to human rights and environment. In addition, he emphasized that the concrete determination of the applicable law in these scenarios goes beyond a straightforward application of the lex specialis principle and demands a careful analysis of the concrete situation on the ground. The Commission should not seek to change international humanitarian law, but rather fill gaps relating to environmental protection, while taking into account recent developments in international law. In the same vein, the current exercise should not seek to change international environmental law or attempt to create new norms, he said.
PAWEL RADOMSKI (Poland), speaking on “Succession of States in respect of State responsibility”, said the Commission should consider the very limited support for treaties relating to State succession. Encouraging some reflection in that regard, he said the preparation of a set of draft articles, instead of summary conclusions, could weaken rather than strengthen the impact of the Commission’s work on future State practice.
Turning to “Protection of the environment in relation to armed conflicts”, he said he agreed with the view that an occupying power shall respect and protect the environment of an occupied territory. He also voiced his support for incorporating the principle of not causing harm to the environment of another State into the obligations of the occupying power.
Moving on to “Immunity of State officials from foreign criminal jurisdiction”, he said that, in principle, immunity consideration should be taken into account during the whole criminal procedure. As well, there is no need to define “criminal jurisdiction” for the purposes of the draft articles. What seems to be central to the topic is finding a common understanding of draft article 7 relating to crimes to which immunity does not apply. The procedure mentioned in paragraph 324 of the Commission’s report is a good starting point, as it aims to address the need to combat impunity for the most serious international crimes while respecting the principle of sovereign equality, which is a source of the immunity of State officials.
ALINA JULIA ARGÜELLO GONZÁLEZ (Nicaragua), speaking on “Immunity of State officials from foreign criminal jurisdiction”, said that the recent adoption of draft article 7 — which states that immunity rationae materiae is not applicable to such crimes as genocide, war crimes and crimes against humanity among others — has served to intensify the debate on the importance of procedural aspects under which this article would be applied in the future. If due process is to be upheld, then the potential for abuse of the exercise of jurisdiction by foreign officials must be minimized. She warned that such attempts will happen in the future and must be guarded against. She also noted that the general comments made by Nicaragua today will be expanded on in a report on practice with regard to procedural questions.
ANDREJ SVETLICIC (Slovenia), speaking on “Succession of States in respect of State responsibility”, said he welcomed the fact that the Special Rapporteur presented cases of State succession from outside Europe, as requested by Member States in 2017. Also welcomed is the plan to present legal consequences of the wrongful act regarding various forms of succession, including whether the predecessor State continues its legal personality or not. He underscored that different consequences such as reparation, compensation and guarantees of non‑repetition should be analysed separately when possible. He also followed the Special Rapporteur’s argumentation on the applicability of rules of State responsibility in cases of succession where the predecessor State continues to exist. In that case, one of the successor States — the continuator State — continues the legal personality of the predecessor State and is therefore, legally, the same State. As noted by the Special Rapporteur, in this case a general rule of non‑succession applies to the continuator State. However, there are possible exceptions, as mentioned in the Second Report. He expressed support for further research of these exceptions, where applicable.
ÁNGEL HORNA (Peru), commenting on “Protection of environment in relation to armed conflicts”, said that, in general terms, he noted with interest the draft set of principles provisionally adopted by the Commission. He also expressed hope that fruitful discussions and exchanges in the Commission on the subject will continue.
On “Succession of States in respect of State responsibility”, he underscored the analysis of instances of succession of States drawn up by the Special Rapporteur as well as draft article 2 on State responsibility for international wrongful acts. Generally speaking, those two items fall under the category of international customary law. Without prejudice to future consideration on the topic, the final product of the continuing debate should take the guise of conclusions.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said he was looking forward to the seventh report of the Special Rapporteur in 2019, which should mark the end of deliberations on the topic so that recommendations can be adopted at first reading.
He went on to suggest a number of ways in which the Commission and the Sixth Committee can improve their interaction. They included improving the way in which the Committee crafts terms of reference for the Commission, enabling that body to produce outcomes in a relatively short period of time. The Chairs of the two bodies could meet unofficially at the start of each session to discuss matters. He also suggested more frequent informal dialogues. In addition, the Commission should conduct part of its work in New York every five years.
YUSUKE NAKAYAMA (Japan), in regards to “Protection of the environment in relation to armed conflicts” highlighted some terms in draft principle 19, paragraph 2, and draft principal 21, provisionally adopted at the Drafting Committee. Specifically he voiced concern with the use of two terms, “take appropriate measures” in the former draft principal, and “exercise due diligence” in the latter to prevent significant harm to the environment. The use of these two different terms in the similar context might cause confusion for readers.
Turning to “Succession of States in respect of State responsibility”, Japan acknowledges the importance of the Special Rapporteur’s work in filling the absence of established law regarding the succession of States. Although this topic contains potential difficulties because of the limited number of relevant State practices, the outcome of discussions could be beneficial. In this regard, the Commission should collect and analyse a wide range of State practices from principal legal systems around the world.
On “Immunity of State officials from foreign criminal jurisdiction”, he said that a proper balance between State sovereignty and the fight against impunity is essential. A consideration of the procedural aspects of immunity would be beneficial to ensure such a balance. It is necessary to recognize that there is not sufficient information on State practices and it would be meaningful to collect State practices from a variety of regions. State practices should be analysed with due consideration to each domestic system.
PAULO ALEXANDRE COLAÇO PINTO MACHADO (Portugal), speaking on “Protection of the environment in relation to armed conflicts”, said that conflicts are not ruled by norms and principles of international law. As such, norms and principles of international human rights law, the Law of the Sea and environmental law must be taken into account when considering the rights and duties of States, combatants and non‑combatants, as well as neutral States in the region. Occupation is supposed to be temporary, but it can result in profound and even irreversible damage. Humans and animals can be damaged by policies put in place and, consequently, the lives of entire populations can be affected not only during an occupation, but long after it has ended. The protection of the environment in relation to armed conflict derives from a legal framework put forward at a time when the knowledge in that area was very different from what exists today. The legal framework lacks specificity. Any environmental change may have consequences for the right to life, food and safe water.
Turning to “Succession of States in respect of State responsibility”, he said practice shows that in such cases, States negotiate questions of responsibility and are able to agree that responsibility is allocated to each State. In that regard, he welcomed paragraph 2 of draft article 1 on the subsidiary nature of the rules. On the name of the topic at hand, he has no issue with changing it, but the suggested change has a negative connotation as it includes the word “problems”.
On “Immunity of State officials from foreign criminal jurisdiction”, he said that the Commission did not have the time to have a thorough discussion on the procedural aspects of immunity. Therefore, he will reserve his opinion until this has been done. In addition, immunity should not apply to the crime of aggression, he said, adding that he hoped the Commission would revisit this issue.
KRISTINA HOŘŇÁČKOVÁ (Czech Republic), commenting on “Protection of the environment in relation to armed conflicts”, said the Commission’s work fails to clarify its direction or whether rules on environmental protection could be taken out of context of other rules applicable to armed conflicts without the risk of altering their meaning. She also expressed concern with an approach that selected rules from various areas of international law and discussed them in connection with armed conflicts. Some of these rules may be applicable in all situations, including those of armed conflicts. However, raising them specifically in the context of the present topic may give a false impression that is not yet the case.
Turning to “Succession of States in respect of State responsibility”, she expressed misgivings about the mention of a saving clause in paragraph 3 of the relevant draft article and questioned whether this needs to be discussed under the current topic. An internationally wrongful conduct of a predecessor State that is later acknowledged and adopted by the successor State as its own must be considered an act of the State. This topic should deal solely with secondary obligations and rights resulting from an internationally wrongful act of the predecessor State — the act which is not directly attributable to the successor State.
On “Immunity of State officials from foreign criminal jurisdiction”, she recommended this be based on a functional, empirical and practical approach, with the analysis based on relevant practices of States. That practice includes their laws on criminal procedures and decisions of national courts, laws on treaties regulating international judicial cooperation and mutual legal assistance in criminal matters and relevant case law of international courts. She also emphasized the importance of addressing immunity issues at an early stage of the proceedings before restrictive measures are taken against the official that hinder the person in performing his or her duties.
PETER NAGY (Slovakia), commenting on “Protection of the environment in relation to armed conflicts” said that the efforts of the international community should be primarily concentrated on the effective implementation of already existing instruments of international humanitarian law. At the same time, he recognized that the legal regime protecting the environment and natural resources from unjustified damage has not yet been comprehensively addressed. Further examination of the topic should therefore focus on identifying areas where there is a need to fill lacunae relating to environmental protection in relation to armed conflict.
Turning to “Succession of States in respect of State responsibility”, he said that he noted the adoption by the Drafting Committee of a new paragraph to be added to draft article 1. This new paragraph states: “The present draft articles apply in the absence of any different solution agreed upon by the States concerned.” He said that it is his understanding that this addition, proposed by the Special Rapporteur, was prompted by the desire to underline the subsidiary nature of the draft articles. It refers to agreements reached between the parties concerned with the view of the problem of State succession in mind. While having no difficulties with the content of the new paragraph, she pointed out that the provision simply restates lex specialis.
On “Immunity of State officials from foreign criminal jurisdiction”, he expressed appreciation of the report, which addresses various procedural matters in relation to immunity, including the timing of the consideration of immunity, the acts affected by immunity and the determination of immunity. In this regard, he said she regretted that no new articles were adopted at the current session. The sensitivity and complexity of the topic is clear, she said, adding that with due regard to State practice in this field, a proper balance can be found between State sovereignty and the fight against impunity.
ELSADIG ALI SAYED AHMED (Sudan), speaking on “Immunity of State officials from foreign criminal jurisdiction”, said the topic is a matter of concern for many Member States, including Sudan. It is complex, bringing together politics and law. He emphasized that immunity and sovereignty are two sides of the same coin and that if cases involving State officials are filed in foreign courts, then those courts must reject them. Describing the Special Rapporteur’s report as worthy of examination, he said he agreed with her view on limiting the scope of articles dealing with foreign jurisdiction. Immunity as a concept must be considered in an objective manner. It enables officials to carry out their functions without hindrance, but it cannot be an excuse to be free of all legal control. He recalled the Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) in which the International Court of Justice ruled in 2002 that Heads of State enjoy absolute immunity for as long as they hold office. Conveying his agreement with draft article 6, but not draft article 7, he added that he also wondered what would happen if the Security Council referred a case to the International Criminal Court and whether a Council resolution would impose an obligation on a State that had not ratified the Rome Statute.