Environmental concerns were in the foreground of the Sixth Committee (Legal) debate today, as delegates concluded consideration of the first cluster of topics from the International Law Commission’s annual report and took up the second cluster, including jus cogens and the provisional application of treaties. (For background, see Press Releases GA/L/3579, GA/L/3580 and GA/L/3581.)
Introducing the second cluster of topics from the report (document A/73/10), Eduardo Valencia‑Ospina, Chair of the International Law Commission, noted that while the 13 draft conclusions on “Peremptory norms of general international law (jus cogens)” were still being considered by the Drafting Committee, the Commission’s debate on the matter had brought forth a number of views and proposals, including the question of the invalidity of a treaty in conflict with a peremptory norm of general international law.
During its session, the Commission had adopted a complete set of 12 draft guidelines, with commentaries thereto, titled the “Guide to Provisional Application of Treaties”, he said. This guide will assist States, international organizations and other users in answering questions that are consistent with existing rules and most appropriate for contemporary practice, he said.
He also highlighted the Commission’s work on “Protection of the atmosphere”, which resulted in the adoption of a draft preamble and a set of 12 draft guidelines on the topic. These guidelines aim to assist the international community as it addresses critical questions relating to transboundary and global issues on that matter.
Highlighting draft guidelines 3 to 9 as forming the core of the text of the draft guidelines, he said that they set out the obligation to protect the atmosphere, and address environmental impact assessment, sustainable utilization of the atmosphere, and equitable and reasonable use of the atmosphere, among other matters.
He also noted that draft guidelines 10 through 12 focus on questions of implementation, compliance and dispute settlement. The last of these emphasize the use of scientific and technical experts in the settlement of inter‑State disputes, whether by judicial or other means.
Finland’s delegate, also speaking for Denmark, Iceland, Norway, and Sweden, welcomed draft guideline 7 on “Protection of the atmosphere” and its emphasis on prudence and caution before undertaking any activities aimed at intentional large‑scale modification of the atmosphere. International environmental law is constantly evolving, she said, encouraging the Commission to draw on the past two years of the Paris Agreement on climate change.
The importance of tackling environmental questions was also echoed as the Committee concluded its consideration of the first cluster of topics from the same report with several delegates encouraging the Commission to add the topic “Sea‑level rise in relation to international law” to its programme of work.
The impact of climate change is devastating the world, the representative of Malawi said. The effects of rising sea levels on statehood require careful study. The Commission’s seventieth anniversary should be a beacon for its maturity in choosing topics that will contribute to global solutions in such critical issues as the environment, he said.
The Permanent Observer of the Holy See called for an ethical approach and respect for the rights of future generations. Since the humanitarian repercussions of rising sea levels are particularly pressing, he urged the Commission to prioritize the question of the legal protection of persons that migrate or are internally displaced.
As well, a senior legal counsel from the Permanent Court of Arbitration drew attention to case studies from the Court’s work addressing rising sea levels. Citing a tribunal’s findings on arbitration between Bangladesh and India, she underscored that the conclusion reflected the importance of maritime boundaries staying fixed, stable and definitive to ensure a peaceful relationship between States in the long term.
The Special Rapporteur for “Identification of customary international law”, Sir Michael Wood, and the Special Rapporteur for “Subsequent agreements and subsequent practice in relation to the interpretation of treaties“, Georg Nolte, also spoke today, thanking delegations for their input and the Commission for their support.
Also speaking today were representatives of Viet Nam, Malaysia, Seychelles, Iran, Uruguay, El Salvador, Bulgaria, Morocco, Monaco and Indonesia as well as the European Union, Council of Europe and International Committee of the Red Cross.
The Sixth Committee will next meet at 10 a.m. on Friday, 26 October, to continue consideration of the second cluster of topics from the report of the International Law Commission.
Statements on Cluster I
NGUYEN NAM DUONG (Viet Nam) said that the Commission’s important work has provided his country and others with valuable information and analysis. Turning to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he reiterated the importance of subsequent practice as an authentic means of treaty interpretation, as evidenced by the Vienna Convention on the Law of Treaties. His delegation had previously expressed concern about the treatment of silence in an earlier draft of the draft conclusions on that topic, he said, noting that in the current draft, the Special Rapporteur rightly pointed out that silence by a party should not be presumed to constitute acceptance.
Turning to “Identification of customary international law”, he expressed appreciation for the comprehensive nature of the report and conclusions submitted by the Rapporteur, especially given this difficult and highly theoretical field of international law. Voicing support for the systematic approach identified by the Commission, he said that selective identification and lowering of the threshold of identification should be discouraged. Highlighting draft conclusions 8 and 15, he noted that the formulation of the former might cause difficulty for the position of the persistent objector in the latter because together they sent confusing signals as to whether the objection must be communicated on every occasion.
AFZAN ABD KAHAR (Malaysia), focusing on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, noted that the Commission’s draft conclusions and their commentaries will serve as useful guidance. As such, she expressed support for the Commission’s recommendation to ensure the widest dissemination of the draft conclusions.
On “Identification of customary international law”, she expressed support for the 16 draft conclusions and commentaries, adding that the topic is crucial to the development of international law. Most of the concerns raised during previous General Assembly sessions have been addressed and considered in the commentaries. Nevertheless, regarding draft conclusion 5, she cautioned that when it is used to identify the rule of international customary law, the relevant party must also consider differences in political ideologies, State structures and the dualist or monist character of a State. It is important to maintain the flexible nature of the formation of customary law, she said, adding that the draft conclusions should serve as guidelines or reference points. Moreover, they must be read together with the commentaries to ensure a comprehensive understanding of the document.
LORRAINE FAURE (Seychelles), associating herself with the African Group and the Pacific Islands Forum Group, said that she appreciated the inclusion of the topic “Sea‑level rise in relation to international law” in the Commission’s long‑term programme of work. With 90 per cent of her country’s population situated on narrow coastal strips and low‑lying land, rising sea levels pose a direct threat. The international community, which has not addressed the legal implications in a comprehensive manner, should do so with the urgency the issue deserves, she said.
SATTAR AHMADI (Iran), noting the seventieth anniversary of the Commission, said that that legal body has played an instrumental role in the codification and progressive development of international law over the last seven decades. Recalling the related events organized in New York and Geneva that provided occasion to express constructive ideas and recommendations, he said he hoped the Commission would take these comments and feedback into account. That would strengthen and promote its functions within its mandate for future work.
He welcomed the inclusion of “General principles of international law” in the Commission’s long‑term programme of work. This would constitute useful contributions to the codification of international law, since the topic has the most common basis for other topics, namely the peremptory norms of general international law and identification of customary international law, which are currently under the consideration of the Commission.
Turning to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said that regarding the status of the draft conclusions, he wondered whether the conditions under which the subsequent agreements or practice in relation to the interpretation of treaties should be applied. As indicated in the report, the draft conclusions do not address all conceivable circumstances in which subsequent agreements and subsequent practice may play a role in the interpretation of treaties. One aspect not dealt with generally is the relevance of subsequent agreements and subsequent practice in relation to treaties between States and international organizations or between international organizations. As such, the draft conclusions could not be applied in the case of conflict between a treaty and subsequent practice of a sovereign State to that treaty as well as to bilateral treaties between States.
On “Identification of customary international law”, he said that he would like to emphasize his delegation’s previous position that the practice of States is an indispensable requirement in the formation, expression and identification of rules of customary international law. In this vein, inaction by States cannot be considered State practice since it is more political than legal in character. Also, the practice of State parties to an international organization and that of the organization need to be considered separately, as only proven practice of States can be considered as evidence for the identification of customary international law.
MARÍA ALEJANDRINA SANDE (Uruguay), thanking the Commission for the clear presentation on the first cluster of topics, said that its reports and drafts are a valuable guide for academics and courts.
Turning to “Identification of customary international law”, she said that the draft conclusions provide, with meticulous academic detail, an in‑depth understanding on the topic. It is important to bear in mind that regional characteristics change the requirements for the identification of customary international law. The right to asylum provided a good example for the regional rule, as demonstrated in an International Court of Justice ruling from 1950 which denied asylum as a custom as it is not of universal application.
While asylum is a separate topic, it does contain elements that are general, she continued, adding that the analysis of the Court that there is not a common position on equal application among States on this matter and that the decision is often political rather than legal should require greater requirements for customary identification. It would be worthwhile to analyse whether the condition of international custom should be found in asylum or should be found in specific characteristics of asylum as an institution.
RUBÉN ARMANDO ESCALANTE HASBÚN (El Salvador), associating himself with Community of Latin American and Caribbean States (CELAC), said of “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” that the report reflects the commentaries sent by States, including El Salvador. On draft conclusion 8, he said it is necessary to clarify in the comments that the specific interpretation of the terms of the treaty depends not only on the common will of the parties but also on the principle of contemporaneity, which must be applied.
Turning to “Identification of customary international law”, he said of draft conclusion 6 on forms of practice that there is no need to set out an exhaustive list on those forms.
Recalling the seventieth anniversary of the Commission, he reiterated his delegation’s congratulations on the work done at the five round tables and welcomed the interaction between the Sixth Committee and the Commission.
On “Other decisions and conclusions”, he took note of the topics adopted and the long‑term programme of work and expressed his support for the important function of the Commission in the codification and development of international law with regard to the two new proposed topics.
DANAIL CHAKAROV (Bulgaria) said, in regards to “Subsequent agreements and subsequent practice”, that the 13 draft conclusions will provide helpful guidance and assistance to States and international organizations and courts when interpreting international treaties. He welcomed the special focus given on specific cases of subsequent agreements and practice, namely the role of the decisions adopted within the framework of the conferences of State parties to international treaties, the practice of international organizations in the application of their constituent instruments and the pronouncement of expert treaty bodies.
Turning to “Identification of customary international law”, he welcomed the Commission’s balanced approach in the elaboration of the draft articles and their commentaries, taking into account both universally recognized principles and methods such as the “two‑element approach” of general practice and acceptance as law (opinio juris). He also welcomed draft conclusion 11, which takes a close look at the relationship and interplay between treaties and customary international law and drawing several well‑founded conclusions on the mutual influence and interaction between the two.
CHARLES MHANGO (Malawi), associating himself with the African Group, said that the adoption of the draft conclusions on “Subsequent agreements and subsequent practice” and “Identification of customary international law” are a significant step forward in the codification of international law. The conclusions will guide those called on to interpret treaties and identify rules of customary international law. Apart from international courts and tribunals, they will offer guidance for States, including national courts, as well as international organizations and others.
Turning to the Commission’s long‑term programme of work, he recommended the inclusion of “Sea‑level rise in relation to international law”, as the impact of climate change is devastating the world. The effects of sea‑level rise on statehood require careful study and the Commission’s seventieth anniversary should be a beacon for its maturity in choosing topics that will contribute to global solutions in such critical issues as the environment.
Noting the Commission’s request on “Protection of the atmosphere” and “Provisional application of treaties”, he encouraged all Member States to submit comments and observations in order for the Commission’s deliberations to be enriched by State practice.
SIHAM SEBBAR (Morocco), congratulating the International Law Commission on its seventieth anniversary, said that its diverse tools provide a wealth of guidance to the community of lawyers, academics and practitioners around the world.
Turning to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, she said that the text, achieved after many years of work, continues to strengthen the spirit of the Vienna Convention. Subsequent agreements and subsequent practice are indeed authentic means of interpretation. However, it is important to avoid confusion regarding categories of interpretation, especially for those who use the text of the draft conclusions without the commentaries.
FLORIAN BOTTO (Monaco) welcomed the decision of the Commission to add the topic “Sea‑level rise in relation to international law” to its programme of work. The elements contained in annex B of the Commission’s report already provide avenues for reflection that are interesting. Given the threat posed by this phenomenon and the legal implications it has, he added his support to the requests for the Commission to add this topic to its current programme of work and to consider it as soon as possible.
BERNARDITO CLEOPAS AUZA, Permanent Observer of the Holy See, commenting on “Sea‑level rise in relation to international law”, said the global rise in sea level is a major challenge requiring a global response. An ethical approach to such challenges must also respect the rights and needs of future generations. He welcomed the Commission’s decision to place the topic on its long‑term programme of work and expressed gratitude to those Commission members working on the issue and mapping out its legal challenges. However, since the humanitarian repercussions of sea‑level rise are particularly pressing, he urged the Commission to move the question of the legal protection of persons that migrate or are internally displaced to its current programme of work, with a view to studying it with urgency. Such study should not represent an academic exercise. Instead, it should constitute a pointed effort towards the progressive development of international law to respond to ever‑growing humanitarian needs.
MARTA REQUENA, Head of Public International Law and Treaty Office Division, Council of Europe, commenting on “Succession of States in respect of State responsibility”, highlighted the Council’s Pilot Project on State Practice regarding State Succession and Issues of Recognition, carried out under the aegis of its Committee of Legal Advisers on Public International Law, as mentioned in the Special Rapporteur’s second report.
She also said that the topic “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” is particularly important to the Council, considering the wide range of expert treaty bodies existing within the Organization. Regarding draft conclusion 13, she said she concurred with the role ascribed by the Commission to expert treaty bodies, noting the Council’s long‑standing practice of such bodies, mostly in relation to convention‑based monitoring bodies, whose members serve in a personal capacity.
Turning to “Identification of customary international law”, the 16 draft conclusions adopted in the second reading this year reflect the approach adopted by States, as well as by international courts and organizations and most authors, she said. This field is very interesting for the Council, especially draft conclusions 12 and 13. Regarding draft conclusion 12, she said she agreed with the Commission that the practice developed within the framework of international organizations can indeed be useful in the identification of customary law. Draft conclusion 13 addresses the role of decisions of courts and tribunals, both international and national, as an aid in the identification of rules of customary international law, including regional human rights courts.
AHMAD SHALEH BAWAZIR (Indonesia), calling the draft conclusions on “Subsequent agreements and subsequent practice” a constructive contribution to future work on treaty interpretation, said that the detailed analysis in the commentary is a useful guide to Member States. Highlighting draft conclusion 5, which includes judicial conduct as subsequent treaty practice, he added that the role of the judiciary in the interpretation and application of law is essential as it is distinct from the practice of other State organs, which are mostly political in nature.
Turning to “Identification of customary international law”, he said that the Commission’s draft conclusions and commentary on that are detailed and comprehensive. Customary international law is the primary source of international law, he stressed, expressing support for the inclusion of the persistent objector’s rule in draft conclusion 15. The commentary elucidated that in a balanced way, he said, underscoring that one of the important aspects of persistent objector is the timeliness of the objection. As well, the objection must be expressed internationally.
EVGENIYA GORIATCHEVA, Senior Legal Counsel, Permanent Court of Arbitration, commenting on “Sea‑level rise in relation to international law”, said that tribunals at the Court, established under annex VII of the 1982 Convention on the Law of the Sea, have touched on the topic. Citing a tribunal’s findings on arbitration between Bangladesh and India, she noted that while maritime features used in the process of delimitation might be affected by sea‑level rise, the boundary itself would remain fixed. The conclusion reflected the importance of maritime boundaries being stable and definitive to ensure a peaceful relationship between States in the long term. Another case, concerning the South China Sea, raised questions about the legal effects of sea‑level rise on the classification of maritime features and the corresponding maritime entitlements of coastal States. Such observations give rise to the question of whether the gradual submersion of maritime features as a result of climate change should be viewed as a natural or man‑made change, with consequences for the status of the feature and its ability to give rise to maritime entitlements.
Turning to “General principles of law”, she said that several early tribunals identified and applied general principles of law, including good faith and equity. In the investor‑State context, the tribunal in the Yukos arbitrations [Yukos shareholders v. Russia] recently considered the existence of a “clean hands” principle. In that context, there is no general principle of law recognized by civilized nations within the meaning of article 38(1)(c) of the International Court of Justice Statute to bar an investor from making a claim before an arbitral tribunal under an investment treaty because of “unclean hands”. Other principles applied in Permanent Court cases include unjust enrichment, the precautionary principle, abuse of rights and pacta sunt servanda, as well as principles specifically relevant to dispute settlement.
CHRISTOPHER B. HARLAND, International Committee of the Red Cross (ICRC), commended the adoption of the draft conclusions on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”. The Commission’s work has assisted the ICRC in its current project to update commentaries to the Geneva Conventions of 1949 and its Additional Protocols of 1977. He was pleased to note parallels in the Commission and the ICRC’s approaches.
Regarding the draft conclusions on “Identification of customary international law”, he emphasized the importance of the topic to the ICRC as it concerns customary international humanitarian law, which remains vital in the regulation of many armed conflicts today. He again welcomed parallels between the Commission’s approach and that of a 2005 ICRC study on the issue.
Commending the Commission for its continued commitment to the topic “Protection of the environment in relation to armed conflict”, he reiterated the importance of ensuring that work on the topic remains in line with existing international humanitarian law and that existing rules are further disseminated. He reaffirmed ICRC’s commitment to contribute to the work of the Special Rapporteur on the topic, particularly on issues related to the protection of the environment during non‑international conflicts and the role of non‑State actors.
GEORG NOLTE, Special Rapporteur for the topic “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, said he is pleased that so many States have taken the floor to present their assessment of the subject and that the outcome of the work has been so favourably received. Six years is not a long time for such work by the Commission to be completed. However, it would not have been possible without the collaboration of all the members of the Commission, past and present. He noted that various chairpersons had facilitated the work and his fellow special rapporteurs have also been very collegial. He thanked the Secretariat and all States for their contributions to the project, as well as to making the outcome of the project acceptable. He expressed his hope that Member States could now follow the recommendations of the Commission and that all those who are called upon to apply treaties will find the outcome useful.
SIR MICHAEL WOOD, Special Rapporteur for the topic “Identification of customary international law” thanked all the participants in the Sixth Committee for their constructive and important contributions over the years. He underscored that the members of the Commission have listened carefully to all that has been said, as well as what has been received in writing from States. All that informed much of the work on the subject. He also thanked colleagues on the Commission, past and present, who have contributed so much on the topic and thanked the Director and members of the Codification Division for all their work. The Commission took up this topic in 2012, having in mind the continuing and increasing importance of customary international law, he said, underscoring that the aim of the conclusions is to offer clear guidance without being overly prescriptive. He expressed his hope that the conclusions would prove helpful to States.
Introduction to International Law Commission Report-Cluster II
EDUARDO VALENCIA-OSPINA (Colombia), Chair of the International Law Commission, said that this year the Commission adopted, on first reading, a draft preamble and a set of 12 draft guidelines on the topic “Protection of the atmosphere” — as indicated by chapter VI of the Commission’s report - in order to assist the international community as it addresses critical questions relating to transboundary and global issues on that matter.
The draft preamble consists of eight preambular paragraphs that seek to set the context in which the guidelines have been adopted, he continued. While draft guidelines 1 and 2 are introductory and definitional in nature, draft guidelines 3 to 9 form the core of the text of the draft guidelines. Draft guideline 3 sets out the obligation to protect the atmosphere, and guidelines 4, 5 and 6 address environmental impact assessment, sustainable utilization of the atmosphere and equitable and reasonable use of the atmosphere. Draft guideline 7 concerns intentional large‑scale modification of the atmosphere while draft guideline 8 addresses international cooperation. Draft guideline 9 deals with the interrelationship among relevant rules.
Turning to draft guidelines 10 through 12, he said they address, respectively, questions of implementation, compliance and dispute settlement. Draft guideline 10 deals with the implementation of obligations under international law relating to the protection of the atmosphere. Draft guideline 11, which complements guideline 10, refers to compliance at the international level; the term “compliance” is used to refer to mechanisms or procedures at the level of international law that verify whether States in fact adhere to the obligations under an agreement or other rules of international law. Finally, draft guideline 12 concerns dispute settlement between States. It emphasizes the use of scientific and technical experts in the settlement of inter‑State disputes, whether by judicial or other means.
Turning to chapter VIII of the report concerning “Provisional application of treaties”, he noted that the report of the Special Rapporteur continued the analysis of views expressed by Member States and provided information on the practice of international organizations. The complete set of 12 draft guidelines, with commentaries thereto, titled the “Guide to Provisional Application of Treaties” aims to direct States, international organizations and other users to answers that are consistent with existing rules and most appropriate for contemporary practice.
He went on to say that while draft guidelines 1 and 2 are concerned with scope and application, the general rule on the provisional application of treaties is stated in draft guideline 4. Draft guideline 5 deals with forms of agreement, on the basis of which a treaty or part of a treaty may be provisionally applied. Draft guideline 6 deals with the legal effects of provisional application. Draft guideline 7 deals with the formulation of reservations by a State or an international organization purporting to exclude or modify the legal effect produced by the provisional application of certain provisions of a treaty. Draft guideline 8 addresses the termination and suspension of provisional application, he said, also outlining draft guidelines 10, 11 and 12 on the relations between provisionally applied treaties and internal State laws, the rules of international organizations and the limitations that could derive from those.
The Commission also considered the topic of “Peremptory norms of general international law (jus cogens)”, he said, noting that the 13 draft conclusions proposed by the Special Rapporteur are still being considered by the Drafting Committee. Highlighting some of the important insights from the Commission’s debate on that topic, he noted that a number of views were expressed and proposals were made regarding the question of the invalidity of a treaty in conflict with a peremptory norm of general international law (jus cogens); the severability of treaty provisions in conflict with a peremptory norm; the elimination of consequences of acts performed in reliance on an invalid treaty; and the effects of peremptory norms on reservations to treaties. In closing, he requested that States provide the Commission with information relating to their practice on the nature of jus cogens.
Statements on Cluster II
LUCIO GUSSETTI of the European Union said that he found the proposed outcome in the format of a guide on “Provisional application of treaties” appropriate as it corresponds to the inherent need for flexibility on that matter. It is anticipated that the guide will also include draft model clauses reflecting the best practice on the provisional application of both bilateral and multilateral treaties. While prima facie such clauses would appear to be of limited interest, the European Union is open to considering them once the Commission has finalized its work on their possible content, he said. The bloc has advocated throughout its interventions that the practice of States and international organizations on provisional application of treaties should also be studied as it could contribute to providing answers and guidance on the many questions that remain unanswered by article 25 of the 1969 Vienna Convention. With that in mind, the Special Rapporteur and the Commission have embarked on an extensive study of such practice and the guide is intended to provide guidance not only on the law but also on the practice regarding the topic.
With respect to draft guideline 3, he underscored that the European Union fully concurs that a treaty or a part of a treaty may be provisionally applied if the treaty itself so provides. However, it is unclear from the commentaries what the source of the obligation to provisionally apply such a treaty - or part of it - is, if the consent to be bound by the clause providing for provisional application is not given upon signature. If the consent is not given upon signature, such a clause is no more than one of the provisions of a treaty not yet in force, he said.
KAIJA SUVANTO (Finland), also speaking for Denmark, Iceland, Norway, and Sweden, welcomed draft guideline 7 on “Protection of the atmosphere” and its emphasis on prudence and caution before undertaking any activities aimed at intentional large‑scale modification of the atmosphere. Spotlighting its close interrelation with draft guidelines 3 to 6, she added that international environmental law is a constantly evolving area of law. Recalling previous statements by her group pointing to the forthcoming entry into force of the Paris Agreement on climate change, she encouraged the Commission to draw on the past two years of that Agreement as it finalized its work.
Turning to “Provisional application of treaties”, she welcomed the Special Rapporteur’s proposal for model clauses, noting that would be of practical assistance when formulating final provisions of treaties. A closer view of the relationship between the model clauses and the guidelines could however be called for, considering their partly overlapping nature. Also welcoming the Commission’s work on the use of reservations in relation to provisional application, she added that any such reservation should be made in accordance with the relevant rules of the Vienna Convention.
Regarding “Peremptory norms of general international law (jus cogens)”, she said that this important topic has potential significant effects on the understanding of international law as a legal system. Noting that the draft conclusions remain with the Drafting Committee, she expressed concern that this might hamper the best exchange of views between the Commission and Member States. Further, this topic is best dealt with by the Commission through a conceptual and analytical approach rather than with a view to elaborating a new normative framework for States.