Continuing their consideration of the International Law Commission’s report today, delegates in the Sixth Committee (Legal) proposed changes to the Commission’s working methods and programme of work, while also considering the draft guidelines on the protection of atmosphere and provisional application of treaties. (For background, see Press Release GA/L/3644.)
The representative of the Netherlands stressed the importance of ensuring meaningful Member State input in the Commission’s work. In that regard, the International Law Commission should be explicit when proposed rules are an exercise in the progressive development of international law. Also calling for more transparency in its treatment of Government comments and observations, including clear explanations for their rejection, he called on the Commission to consider limiting the number of topics in its programme of work so all Member States can provide their comments.
Austria’s delegate, also commenting on the Commission’s programme of work, called for the inclusion of universal jurisdiction. While some delegates considered the concept too politically sensitive, he said it is essentially legal, adding that the Commission will be able to dispel existing misunderstandings. Noting the inclusion of “Subsidiary means for the determination of rules of international law” in the programme of work, he observed that it seems mainly of academic value and not practical relevance.
New Zealand’s delegate drew attention to his Government’s nomination of a woman for election to the Commission for the term beginning in 2023, echoing a call for gender parity in the Commission’s composition that has reverberated throughout International Law Week. He also welcomed the guidelines on “Protection of the Atmosphere”, especially regarding the reference to giving special consideration to vulnerable persons and groups, including indigenous peoples, those of least developed countries and low-lying coastal areas and small island developing States.
The delegate of the Federated States of Micronesia also welcomed the recognition of the need to afford special consideration to persons and groups particularly vulnerable to atmospheric pollution and atmospheric degradation in draft guideline 9. Calling the draft guidelines a constructive resource, she underscored that the obligation to protect the atmosphere is an obligation erga omnes. Failure to meet that obligation triggers State responsibility.
Malaysia’s representative stressed that, in regard to “Protection of the atmosphere”, developing countries should not be marginalized in any way for lack of proper economic standing and/or technical assistance. She also emphasized the voluntary basis of the provisional application of treaties, adding that there should be a manifestation of unequivocal consent and explicit commitment made by States and international organizations to apply the treaty provisionally.
The delegate of Ireland stressed that provisional application is not an alternative to the full application of a treaty, but a complementary and temporary regime. Highlighting the flexible nature of provisional application, she commended the Commission for its clear indication regarding the objective of the Guide as well as for the annex with examples of such application.
Also speaking today were the representatives of Peru, Sri Lanka, United Kingdom, Paraguay, Thailand, Argentina, Republic of Korea, Jamaica and Turkey.
The Sixth Committee will next meet at 3 p.m. on Thursday, 28 October, to conclude its consideration of topics in Cluster I and begin its consideration of topics in Cluster II from the report of the International Law Commission.
Statements on Cluster 1
CRAIG JOHN HAWKE (New Zealand) said his Government is proud to have nominated Penelope Ridings, who was also co-nominated by the Governments of Australia, Canada, and Sierra Leone, for election to the Commission for the term beginning in 2023, adding that she would make a valuable contribution to the future work of the Commission.
Turning to “Protection of the Atmosphere”, he said that the related international law and other relevant rules of international law should be identified, interpreted and applied in a coherent manner, to the extent possible. He welcomed the referral of the draft preamble and guidelines to the General Assembly to note in a resolution and ensure their widest possible dissemination. The utilization of the atmosphere should be undertaken in a sustainable manner, given it is a natural resource with a limited assimilation capacity. He expressed support for the references in the preamble and the guidelines that special consideration should be given to persons and groups particularly vulnerable to atmospheric pollution and atmospheric degradation, including indigenous peoples, people of least developed countries and people of low-lying coastal areas and small island developing States affected by sea-level rise.
On the “Provisional application of treaties”, he said the Guide and commentaries will be a valuable practical tool for States, supporting the development of consistent practice in this area. He also welcomed the detailed analysis in the Special Rapporteur’s report on the question of which rights and obligations arising from the entry into force of a treaty are triggered in the event of provisional application. He stressed that the provisional application is not and cannot be used as a means of bypassing Parliamentary procedures. Retaining the flexibility of provisional application is key to managing the tension between bringing a treaty into force at the international level and ensuring relevant domestic constitutional procedures are completed, he said.
ALESSANDRA FALCONI (Peru), noting the hybrid format in which the seventy-second session of the Commission was conducted, underscored the importance of continuing to foster the progressive development and codification of international law.
On “Protection of the atmosphere”, she said it is appropriate for the General Assembly to take note in a resolution of the draft preamble and guidelines and commend them to the attention of States and other stakeholders. Highlighting the allusion to sustainable use of the atmosphere, she noted that the guidelines pay attention to the situation of particularly vulnerable persons and groups, such as indigenous people and those from least developed countries.
On “Provisional application of treaties”, she welcomed the Commission’s recommendation to the Assembly to take note of the Guide in a resolution and encourage its widest possible dissemination. The Guide is a useful instrument for States and organizations, she said, reiterating gratitude to Switzerland for hosting the Commission.
She also welcomed the inclusion of “Subsidiary means for the determination of rules of international law” in the Commission’s future work. However, she underscored the need for budgetary resources, expressing support for the establishment of a trust fund.
PETER MOHAN MAITHRI PIERIS (Sri Lanka) welcomed the Commission’s adoption of a hybrid format that enabled members to participate either in person or online and that ensured the smooth conduct of deliberations.
On the topics taken up by the Commission, he highlighted its work on “Protection of the atmosphere” and “Provisional application of treaties”, which resulted in a set of draft guidelines. He also supported the reconstitution of the Study Group for the topic of “Sea-level rise in relation to international law” and of the planning group to consider the Commission’s programme, procedures and working methods.
Stressing the immeasurable value of the Commission’s work, he called on Member States to provide the necessary support and impetus to the Commission. He also invited States to have a greater appreciation for the fact that the international-law system suffers due to a lack of a central enforcement mechanism. To that end, he expressed hope that the international community will move past rhetoric and agree on a system to which States are compelled to submit.
ANNE-MARIE O’SULLIVAN (Ireland), aligning herself with the European Union and focusing on “Provisional application of treaties”, commended the International Law Commission for its clear indication in the general commentary regarding the objective of the Guide to the Provisional Application of Treaties. The legal effect of provisionally applying a treaty, or part of a treaty, is unequivocally affirmed in guideline 6, she said, pointing out that this guideline is important confirmation of the legal obligation on States and international organizations to apply in good faith those provisions that are subject to provisional application. She also welcomed the commentary explaining in more detail the legal effect of provisional application in its two elements, while stressing that the provisional application is not an alternative to full application of a treaty, but a complementary and temporary regime. Emphasizing the flexible nature of provisional application, she further appreciated the inclusion of the annex, which included extensive examples of existing treaty provisions to assist States and international organisations in dealing with the most common issues when considering provisional application of treaties.
Mr. BERMAN (United Kingdom), stressing the need for greater engagement with States, said the Commission must proceed with caution and rigour both in the choice of topics and in ensuring that its products take into account the views and practices of States.
Welcoming the Commission’s work on “Protection of the atmosphere”, he said the Guide was sensitive to the concerns of States. The draft guidelines are a potentially useful contribution to the international law on protection of the atmosphere, he noted, but they emphasize the significance of existing international obligations that already address many of the issues concerning protection of the atmosphere.
On “Provisional application of treaties”, he said the Commission is to be commended for giving due weight to the comments of States. Some important clarifications were introduced, both in the guidelines themselves and in the commentaries. Highlighting draft guideline 6, which makes clear the legal effect of provisional application, he said the Guide to Practice is likely to become a useful tool for all those who have to address questions on provisional application. However, provisional application should not become a routine occurrence and should remain a tool used in a specific context, he stressed.
JANE J. CHIGIYAL (Federated States of Micronesia) called on the international community to break down unnecessary silos between international law regimes and processes of relevance to the protection of the atmosphere. The draft guidelines are a constructive resource in that regard. The guidelines assert that relevant rules of international law on the protection of the atmosphere should be “identified, interpreted and applied in order to give rise to a single set of compatible obligations … with a view to avoiding conflicts”, she said. However, the development of new rules of international law of relevance to the protection of the atmosphere should be done in a harmonious manner. Welcoming the recognition of the need to afford special consideration to “persons and groups particularly vulnerable to atmospheric pollution and atmospheric degradation” in draft guideline 9, and States’ obligation to ensure environmental impact assessment for activities that directly and adversely impact the atmosphere in draft guideline 4, she reiterated that the obligation to protect the atmosphere is an obligation erga omnes, and failure to meet that obligation triggers State responsibility.
DAVID ANTONIO GIRET SOTO (Paraguay), commenting on the “Protection of the atmosphere”, expressed appreciation for the continuing work of the International Law Commission, especially regarding the formulation of the related guidelines. He welcomed the adoption on second reading of the set of 12 guidelines that include a preamble along with substantive and procedural principles. He also highlighted the relevance of the Commission’s work on this topic because of its relationship to the Sustainable Development Goals, in particular Sustainable Development Goals 3.9 and 11.6. In Paraguay, the environment has protection at a Constitutional level, he said, noting that this is how the activities susceptible to producing environmental alteration are regulated by national legislation. In this regard, he spotlighted the national law 5211/2014, which protects the quality of the air and atmosphere through the prevention and control of the emission of chemical and physical pollutants into the atmosphere. In addition, he noted how the set of guidelines mentions the peaceful settlement of disputes in the context of protecting the atmosphere. This mention, as well as the special consideration given to the establishment of facts and the role of science, give the guidelines an appropriate balance, especially in light of the distinctive nature of the effects of air pollution.
SARAH ZAHIRAH BINTI RUHAMA (Malaysia) said the draft guidelines on “Protection of the Atmosphere” should work towards providing clear guiding principles and approaches for States to convene appropriate steps to protect the atmosphere. On preambular paragraph 4, she said the participation of developing countries on an equitable basis should not be marginalized in any way for lack of proper economic standing and/or technical assistance. Further, the limitations faced by developing countries should also be included in that paragraph to reflect the scarcity of resources, among other issues. On draft guideline 11, specifically on termination of rights and privileges under the relevant agreements as part of the enforcement procedures, she noted that said termination of rights and privileges will be subject to the respective provisions of the relevant agreement. She also said that she would appreciate it if concerns raised could be deliberated further, considering the technical nature of the subject matter.
Turning to “Provisional application of treaties”, she underscored the voluntary basis of the provisional application of treaties. In that regard, she said there should be some manifestation of unequivocal consent and explicit commitment made by States and international organizations to apply the treaty provisionally and thereby agree to be bound by such provisional application. While Malaysian law does not expressly prohibit or permit the provisional application of treaties to its domestic laws, she pointed out that Malaysia, as a dualist state, will ensure that its laws are in line with relevant requirements under international law before ratifying or acceding to any treaty.
THARARUT HANLUMYUANG (Thailand) welcomed the draft guidelines on “Protection of atmosphere”, adding that the Commission’s contribution to technical issues can be useful in enriching the discussion in other forums. The draft guidelines are a good example of in-depth analysis of key principles of international law that apply to often complex and cross-cutting issues, she said, highlighting their focus on due diligence, obligation to cooperate and peaceful settlement of disputes, which can address the fragmentation of international law.
Turning to the “Provisional application of treaties”, she said that since the provisional application of treaties might not be possible at all under the internal law of States, it is essential and proper that the draft guide unambiguously reflect the consensual nature of such application. Further, while facilitating the entry into force of treaties, the provisional application should not undermine or delay the process, she said, adding that provisional application should have a fixed time period of implementation. The negotiating parties should resort to the provisional application of treaties only when there is a real necessity to begin implementation of treaties before their entry into force, she stressed.
HOLGER MARTINSEN (Argentina) said that the topic “Protection of the atmosphere” is a highly relevant problem for States, given the cross-cutting, universal nature of the pollution and degradation of the atmosphere. In principle, he welcomed the Commission’s draft guidelines in their normative sense and for their recognition of the relationship between international-law rules on the atmosphere and the norms of other legal forums. However, he said that the guidelines’ exclusion of other normative topics “conspires somewhat against the transcendence of the Commission”, citing the principles of shared but differentiated responsibility, the responsibility of States and nationals, the importance of a precautionary approach and the transfer of funds, technology and intellectual property to developing countries.
On “Provisional application of treaties”, he emphasized that this topic is a fundamental aspect of the law of treaties and holds practical relevance. He welcomed the Commission’s decision to provide the draft guidelines to States and international organizations for their comments; this is essential so that traditions and customs are reflected in the Commission’s work. He also supported the guidelines’ recognition that the provisional application of treaties is a voluntary mechanism that can be limited or restricted based on States’ domestic law.
BAE JONGIN (Republic of Korea), turning first to the item “Protection of the atmosphere”, said that while the draft guidelines can play a meaningful role on the path ahead, they should not interfere with relevant political negotiations on other environmental issues, nor should they seek to fill gaps in existing treaty regimes. Welcoming language intended to preserve the nature of that document as a “guideline”, he also noted the Commission’s decision not to add “Failure to implement the obligations amounting to breach thereof entails the responsibility of States under international law” as paragraph 2 of draft guideline 10. It would be inappropriate and unnecessary to refer to the issue of responsibility of States, as it falls beyond the scope of the topic.
Turning to the “Provisional application of treaties”, he welcomed the adoption of the entire second reading draft of the Guide and the addition of the phrase “in accordance with the rules of such organization or conference, reflecting the agreement of the States or international organizations concerned” in draft guideline 4(b)(i). Such language makes it clear that the means for expressing agreement to provisional application of a treaty should comply with the rules of the organization or the conference. On draft guideline 7, he welcomed the cautious approach reflected in the current wording, especially the use of the phrase “without prejudice to”.
He also praised the Commission’s decision to include the topic “Subsidiary means for the determination of rules of international law” in its long-term programme of work.
Mr. COORE (Jamaica), on the “Protection of the atmosphere”, welcomed the language in the fifth and sixth preambular paragraphs which speak to the relationship between the atmosphere and the oceans. He also highlighted the sixth preambular paragraph, addressing the issue of sea-level rise and the special situation of low-lying coastal areas and small island developing States. In that regard, his country has continued to take legislative, policy and practical measures to reduce risk and mitigate disasters. On draft guideline 8, he stressed the encouragement in the guidelines for States to cooperate in enhancing scientific knowledge. He also underscored that paragraph 9 of the commentaries in relation to draft guideline 9 acknowledges that the protection of the atmosphere is intrinsically linked to the oceans and the law of the sea owing to the close physical interaction between the atmosphere and the oceans.
He went on to add his support for the Commission’s decision to include the topic “Subsidiary means for the determination of rules of international law” in the long-term programme of work. In light of the important work done in respect of the other areas relevant to the sources of law, he said that it is appropriate for the Commission to consider this topic. He also encouraged the Commission to continue to seek to identify topics of practical importance and which address the real world needs of Member States.
RENÉ LEFEBER (Netherlands) suggested that the International Law Commission consider limiting the number of topics in its programme of work in order to enable all Member States to provide their comments, observations and example of State practice and opinio juris. To ensure meaningful Member State input, the Commission might also attach greater significance to States’ reservations on the desirability of taking up certain topics, even if such reservations are few. Further, he said his Government would welcome more transparency in the Commission’s treatment of Government comments and observations, including clearly explaining its reasons for rejecting the same. It should also be more reluctant to conclude that a particular rule has obtained the status of customary international law in the absence of sufficient State practice and opinio juris, and state explicitly when proposed rules are an exercise in the progressive development of international law.
Turning to “Protection of the atmosphere”, he said that the draft guidelines incorporate key principles of international environmental law and provide useful guidance to the international community for addressing critical issues related to the transboundary and global protection of the atmosphere. He welcomed the guidelines’ focus on the protection of a natural resource ‑ the atmosphere ‑ rather than on one or more types of pollution, which constitutes a “paradigm shift to preserve our global environment”. He added that the Commission’s report incorrectly attributes certain comments to his Government.
On “Provisional application of treaties”, he said that the guidelines and their commentaries will be a useful tool for States and international organizations and will contribute to the development and understanding of relevant practice in accordance with article 25 of the Vienna Convention on the Law of Treaties. Noting that his country’s comments submitted over the years have been considered, he spotlighted the need to avoid blurring the conceptual distinction between the rules applicable to treaties that have entered into force and those that are applied on a provisional basis.
On “Other decisions and conclusions of the Commission”, he said that, while he understood the desire to pursue further work on the sources of international law, he would rather see the Commission focus on issues that are more pertinent for international practice, such as the use of non-binding instruments in the identification and application of international law. He also suggested that the Commission move from its long-term programme of work to the short-term topic “the settlement of international disputes to which international organizations are parties”.
HELMUT TICHY (Austria), highlighting draft guideline 9 on the “Protection of atmosphere”, expressed agreement with the Commission that the guidelines should be interpreted and applied in harmony with other existing rules of international law. However, he said, such harmonic interpretation or application cannot expand international legal obligations beyond the content originally accepted by States.
On “Provisional application of treaties”, he welcomed the approach chosen in guideline 3 to go beyond article 25 of the Vienna Convention on the Law of Treaties by omitting its explicit reference to negotiating States. This enables provisional application not only for negotiating States but also for acceding States.
Also adding that the topic of “Subsidiary means for the determination of rules of international law” seems mainly of academic value and not practical relevance, he encouraged the Commission to take up universal jurisdiction in its programme of work. Voicing his disagreement with those delegates who said the concept was too politically sensitive, he said it is essentially legal and the Commission will be able to dispel the existing misunderstandings.
Mr. KAPUCU (Turkey), speaking on “Protection of the atmosphere”, stressed the importance of this transboundary environmental issue and pointed out that the ozone layer ‑ which absorbs a large part of harmful solar radiation ‑ is weakened by industrial activity. Turkey is party to both the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer. His country is also committed to other international efforts to protect the ozone layer.
On “Provisional application of treaties”, he pointed out that, for Turkey to be bound by an international agreement, the instrument must be approved in accordance with relevant domestic procedures; mere signing does not suffice. He also noted that Turkey is not party to the Vienna Convention on the Law of Treaties. As a rule, treaties should be applied after their entry into force, he emphasized. The provisional application of treaties should be an exception ‑ applied at the discretion of States ‑ and although the wording of draft guideline 6 has changed, it could still threaten national legislatures’ exclusive power to consent to international undertakings by removing the need for approval by such bodies.
Turning to “Other decisions and conclusions of the Commission”, he welcomed the Commission’s decision to recommend the inclusion of the topic “Subsidiary means for the determination of rules of international law” in its long-term programme of work.