Delegates Continue Debate on Second Cluster of Topics from International Law Commission Annual Report
Because the International Court of Justice is adjudicating more cases related to scientific and technological advances, the Court is able to guarantee its competency addressing such expanded and diverse disputes through the engagement of outside experts as established by its founding Statute, the President of that body told the Sixth Committee (Legal) today during his annual visit.
Abdulqawi Ahmed Yusuf, President of the International Court of Justice, highlighted emerging trends in the Court’s judicial activities, including the growing diversity of the subject matters of the cases submitted to it, including an increase in the number of cases related to topics such as human rights, diplomatic relations and environmental protection.
However, he pointed out that as scientific knowledge continues to grow, States are relying on technological and scientific parameters to set the scope of their legal obligations. As a result, questions have been raised as to whether the Court is the appropriate place to tackle such disputes and whether it is well equipped to do so.
The law is not an island unto itself, he emphasized, and its application is, indeed, being influenced by scientific and technological changes. However, thanks to the incredible foresight of the drafters of its founding Statute, the Court is able to bring outside experts to assist. As outlined in the Statute’s article 50, the Court is permitted to appoint its own experts to fully appreciate the scientific issues raised.
Giving an overview of the procedures that come into play during the Court’s decisions to appoint experts, he pointed out that the principle iura novit curia (the court knows the law) means that it cannot outsource its judicial function to experts. The principle of equality of arms is also applicable. The Court must ensure that the presence of Court‑appointed experts does not tilt the balance in favour of one party or the other.
More importantly, he underscored that the Court is not the arbiter of scientific issues, but decides disputes brought to it based on the law. Over the years, the Court has shown it is not reluctant to deal with scientific evidence. Rather it works within the bounds of its Statute and respects the principles of international adjudication.
The Sixth Committee also continued its annual review of the report of the International Law Commission today with its consideration of the second cluster of topics, including “Protection of the atmosphere”, “Provisional application of treaties” and “Peremptory norms of general international law (jus cogens)”. (For background, see press releases GA/L/3579, GA/L/3580, GA/L/3581 and GA/L/3582.)
The representative of Brazil, speaking on “Peremptory norms of general international law (jus cogens)”, noted that draft conclusion 17, which deals with consequences of jus cogens and international organizations, must retain an explicit reference to Security Council decisions. The Council is also bound by jus cogens norms, she said, and the Commission should take note of that matter.
France’s delegate underscored that it had been three years since the topic of “Peremptory norms” was included in the Commission’s programme of work. Despite that fact, none of the draft conclusions provisionally adopted by the Drafting Committee had been referred to the Commission in its plenary format. In addition, no draft commentary on the conclusions was presented in the plenary. This could only undermine States’ confidence in the work of the Commission, he cautioned.
Singapore’s delegate, speaking on the topic “Provisional application of treaties”, highlighted the Commission’s proposal to annex draft model clauses on the guidelines. He also lamented the lack of examples involving Asian States in the draft model clauses, stressing that more could be done to represent the diversity of State practice.
Several delegates expressed concern regarding the topic “Protection of the atmosphere”, including Poland’s representative, who highlighted several matters found in the draft guidelines on that topic. In particular, he underscored that draft guideline 10 on implementation did not take into account the fact that international law holds that measures taken by States to meet their international obligations are left to their discretion.
In a similar vein, Japan’s representative said that the Commission should reconsider the wording of the preambular paragraph, which states that atmospheric degradation “is a pressing concern of the international community”. The discussion on this concept has since been updated, given that in 2015 the Paris Agreement on climate change recalled the concept of “common concern of humankind,” he said.
Also speaking today were representatives of Austria, China, Italy, Cyprus, Egypt, Mexico, Czech Republic, Slovakia, Germany, Slovenia, Estonia, Netherlands, Spain, India, Ireland, Belarus, Thailand, New Zealand, Romania, Portugal, Sri Lanka and Russian Federation.
The Sixth Committee will next meet at 10 a.m. on Tuesday, 30 October, to continue consideration of the second cluster of topics from the report of the International Law Commission and will commence consideration of the third cluster.
International Court of Justice
MARIA ANGELA PONCE (Philippines), Vice‑Chair, Sixth Committee (Legal), pointed to the well‑established tradition that the President of the International Court of Justice pay a visit to the Legal Committee whenever the General Assembly considers the Court’s report. Welcoming Abdulqawi Ahmed Yusuf, President of the Court, along with Justices Peter Tomka and Nawaf Salam as well as Philippe Couvreur, Registrar of the Court, she added that “We are keen observers of the Court”. The jurisprudence of the Court has been and continues to be of the utmost importance for the progressive development of international law and its codification, she emphasized.
ABDULQAWI AHMED YUSUF, President of the International Court of Justice, said that over the years, the Court has submitted numerous reports on its judicial activities to the General Assembly. A careful observer of these reports would not fail to discern two emerging trends. The first is the substantial increase in the number of decisions rendered by the Court on the merits and on incidental proceedings. In the first 10 months of this year alone, the Court delivered two decisions on the merits, a judgement on compensation, one judgement on preliminary objections and two orders indicating provisional measures.
The second trend could be found in the growing diversity of the subject matter of the cases submitted to the Court, he continued. Besides traditional matters such as territorial sovereignty and maritime delimitation disputes, the Court is increasingly seized of disputes pertaining to other topics such as human rights, diplomatic relations and environmental protection. As the only international court with general jurisdiction, the Court is competent to decide on all matters of international law, subject to the consent of the parties to the dispute. Over the past century, the areas governed by international law have increased significantly. As scientific knowledge continues to grow, States and international organizations are relying on technological and scientific parameters to define the scope of their legal obligations. As a result, matters touching on complex scientific issues are increasingly falling within the jurisdiction of the Court ratione materiae.
While cases of this kind often raise the question as to whether the Court is well equipped to tackle disputes involving scientific evidence, he observed that the legitimacy of this question rests on the very composition of the Court. Under article 2 of its Statute, members of the Court are not required to have recognized competence in scientific matters. One of the procedural tools available to the Court allows it to take cognizance of scientific issues in cases before it - that of Court‑appointed experts. Article 50 notes that the Court may, at any time, “entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion”. The use of Court‑appointed experts allows the Court to fully appreciate the scientific issues raised in some of the cases brought before it, without prejudice to the procedural rights of the parties.
In that regard, he addressed two key issues relating to the appointment of such experts: the added value of such experts, and under what circumstances the Court should appoint its own experts. Turning to the added value of Court‑appointed experts in the Court’s proceedings, he said that the disputing parties usually are the main providers of evidence in the cases. In the Pulp Mills case, the Court explained that in accordance with the well‑established principle of onus probandi incubmit actori, it is the duty of the party that asserts certain facts to establish the existence of such facts (Pulp Mills on the River Uruguay [Argentina v. Uruguay], Judgement, Reports 2010 (I), p. 71, para 162). To this end, parties have frequently relied on experts to address or elucidate controversial scientific issues. Party‑appointed experts undoubtedly offer valuable assistance to the Court. However, there are at least two reasons why the Court may still need to appoint its own expert under article 50 of its Statute. One reason is the practice of disputing parties not to call experts as witnesses, but rather to include them as counsel in their respective delegations. Another reason is that party‑appointed experts tend to make submissions before the Court that are more favourably disposed to the interests of the party that has appointed them.
On the question of deciding to have recourse to Court‑appointed experts, he said it would be impossible to list every circumstance under which the Court might need to appoint its own experts. An examination of the Court’s case law reveals that it has exercised its power under article 50 on only a few occasions: in the Corfu Channel (United Kingdom v. Albania) case, during both the merits and compensation phases; in the Gulf of Maine (Canada/United States of America) case; and most recently in the Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) case. The fact that the Court did not exercise its power under article 50 for more than 40 years has given rise to allegations that it was reluctant to appoint experts. These criticisms were not only external but also came from the bench itself.
Regarding the impact of article 38 of the Court’s Statute, the first element to be considered is the article itself, which provides that the Court’s function is “to decide in accordance with international law such disputes as are submitted to it”, he continued. This provision has two consequences for the appointment of experts by the Court. Firstly, it is for the members of the Court, not the experts, to settle the disputes submitted to it. The appointment of experts by the Court must not result in an outsourcing of its judicial function to those experts. Secondly, the Court will only appoint experts when they are necessary for its decision on the case.
On the impact of fundamental principles of international procedure, he said that there are two principles of procedure that may influence the Court’s decision to appoint experts: the principle iura novit curia and the principle of equality of arms. On iura novit curia, the principle operates to limit the situations in which the Court may need to appoint experts. It is for the Court to interpret treaties in the cases submitted to it. Since the Court knows the law, it cannot outsource its judicial function to experts. This applies even in situations where treaties express the parties’ legal obligations using scientific parameters.
On the principle of equality of arms, he said that the exercise by the Court of its power to appoint experts interferes with the allocation of the burden of proof between the parties. This is particularly so regarding the maxim onus probandi incumbit actori, which stems from the principle of equality of arms. Thus, the Court must ensure that the presence of Court‑appointed experts does not tilt the balance in favour of one party or the other. The equality of arms and the allocation of the burden of proof between the parties are critical elements in deciding whether to appoint experts. Depending on the specificities of each case, the principle of equality of arms may point the Court in one direction or another.
The great scientific progress made by humanity over the last century has revolutionized the way in which issues both in international relations and in daily lives are addressed, he pointed out. It is not surprising that science has had an impact on international law and has come to affect the work of the International Court of Justice. However, the Court is not the arbiter of scientific issues. Within the scope of its contentious jurisdiction, the Court is charged with deciding disputes brought to it based on law. It is only when scientific evidence is relevant for the decision‑making process, and that evidence has not been adequately provided by the parties, that the Court will exercise its power to appoint its own experts.
Looking at the practice of the Court over the years, it is clear that it has not shown any reluctance to deal with scientific evidence, he said. Rather, it has tried to exercise its function within the bounds of the Statute while respecting the fundamental principles of international adjudication. Nonetheless, the law is not an island unto itself. It affects and, in turn, is affected by other disciplines. There is no doubt that its application is being increasingly influenced by scientific and technological changes. The Court cannot remain oblivious to these realities and must continue to assess the extent to which its work may benefit from the introduction of outside experts, bearing in mind the various factors outlined today. Luckily, the Statute provides for that possibility under article 50, thanks to the incredible foresight of its drafters, he said.
Mr. YUSUF, opening the floor to delegates, said that in order to engage in an effective dialogue and exchange of ideas, the Court should inform the Sixth Committee members in advance of the theme of the presentation. In that way, delegations can take note and prepare themselves for an interactive dialogue. As well, because the Committee receives and discusses reports from the International Law Commission, the presentation of the Court’s President could be made relevant to those discussions, placing it in the midst of those discussions.
MICHEL XAVIER BIANG (Gabon), Chair of the Sixth Committee, concurring with that suggestion, said it would be interesting for the Committee to have an idea as to the topic of the President’s statement in advance so that delegations could prepare. He also reassured the President that the fact that there are no requests for the floor demonstrates that he had been extremely comprehensive in his presentation.
The representative of Peru said that the silence should not be interpreted as indifference to the President’s presentation, recalling that delegations had been able to hear the President give a report of the work of the Court in the General Assembly yesterday. Peru, as a non‑permanent member of the Security Council, was also able to hear the President speak in a closed session of the Council on the importance of the rule of law at the international level. In addition, the President had shared in the General Assembly the measure that had been taken in his presidency regarding a new practice related to the involvement of magistrates in the arbitration of cases between States in the Court. This was a positive development in the practice of the Court.
The representative of Sweden said that the delegates appreciated the President’s presentations in the General Assembly, the Sixth Committee and the Security Council, of which her country is also a non‑permanent member. She also stressed that she appreciated the President’s generosity in proposing a new method next year. The presentation raised important issues and many delegations would like to ponder the theme in advance.
Statements on Cluster II
HELMUT TICHY (Austria), commenting on “Protection of the atmosphere”, noted the report’s main gist is reflected in the three new draft guidelines 10 to 12 that aim to integrate substantive draft guidelines 1 to 9 into the general system of international law. However, he said that he was not convinced of the necessity of draft guideline 10(1), as it is already a fundamental principle of general international law that international obligations must be implemented by States in their domestic law. The second paragraph of draft guideline 10 would be sufficient. Draft guideline 12(1) on dispute settlements states the obvious - that disputes have to be settled through peaceful means, including disputes relating to the protection of the atmosphere from atmospheric pollution and atmospheric degradation. It is the speciality and complexity of the facts, not their fact‑intensity, that require expert assistance.
Turning to the draft guidelines on “Provisional application of treaties”, he said that the guidelines will provide a valuable tool for States and international organizations in their treaty‑making practices. An additional explanation of the legal effect of reservations would be helpful, as it had not been sufficiently dealt with in the 2011 Guide to Practice on Reservations to Treaties.
Regarding “Peremptory norms of general international law (jus cogens)”, he voiced his apprehension that the length of the report and the lack of time for sufficient discussion may have contributed to the Commission’s Drafting Committee only dealing with a small part of the proposed conclusions. Concerning draft conclusion 13(2), he said that he agreed with the underlying idea that has played a particularly prominent role in the context of human rights treaties. Nonetheless, he preferred the wording proposed by the Special Rapporteur in paragraph 76(b) of his third report, he said.
XU HONG (China) said on “Protection of the atmosphere” that the topic, as a current and common issue faced by humankind, involves political, legal and scientific aspects and therefore is highly complex and sensitive. He said that he supported the reaffirmation in the present draft guidelines of such basic principles of international law, including those on international cooperation and the peaceful settlement of disputes. However, he differed on the specific provisions proposed in the draft guidelines. For example, with regards to draft guideline 3, to date no clear and specific rules of international law have emerged in the field of protection of the atmosphere. In particular, specific legal obligations placed on States to protect the atmosphere have yet to materialize, and the relevant practice and rules are still being developed.
Turning to “Provisional application of treaties”, he said that the scope of legally binding obligations on the parties concerned created by the provisional application should be defined cautiously, with due respect for the genuine intentions of those parties. The conditions and procedures of the provisional application agreed upon by the parties should be interpreted rigorously to avoid undue expansion of the scope of obligations placed upon the parties. The relevant commentaries should clarify this matter, he said.
On “Peremptory norms of general international law (jus cogens)”, he underscored that given the unique importance of jus cogens the Commission should be extremely cautious in its consideration of this topic. The determination of the elements, criteria and consequences of jus cogens must be based on the relevant provisions of the Vienna Convention and be supported by adequate practice at the State level. The focus should be on codifying lex lata rather than developing new laws, he said.
Addressing topics included in the third cluster of topics, he observed that in regards to “Protection of the environment in relation to armed conflicts”, international and non‑international armed conflicts are different in nature. Rules of international law that apply to international armed conflicts, unless supported by State practice, cannot be copy pasted into non‑international armed conflicts. However, the inclination to do just that remains present in the draft principles and commentaries. The Commission should look more deeply into this matter, he said.
On “Succession of States in respect of State responsibilities”, he said that there is a paucity of State practice on the matter and what little State practice that is available is specific to complex and historical contexts that vary from State to State. This poses a real challenge to any attempt to codify a general rule. The Commission should consider whether it is necessary to continue work on this topic or whether it might be more advisable to formulate some essential draft guidelines and leave it at that.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he noted many Member States had voiced objections to the provision on the non‑applicability of immunity ratione materiae under draft article 7. He encouraged the Committee to take these views seriously and re‑examine that article and the commentary thereto.
ANDREA TIRITICCO (Italy), addressing “Protection of the atmosphere”, said that guideline 10 is particularly remarkable; it is an essential completion of guideline 3. Guideline 11 could also be acceptable, he noted, agreeing with the language used at paragraph 2. It deals with disparities among States and provides facilitative measures of assistance to those unable to comply with international law obligations because of lack of capacity. He also stressed the distinction between “enforcement procedure” and the invocation of international responsibility. In that regard, paragraph 5 of the commentary to draft guideline 11 is acceptable. It is preferable to incorporate language excluding interference with existing dispute settlement provisions in treaty regimes, he said, adding his support for paragraph 2 of draft guideline 12.
On “Peremptory norms of general international law (jus cogens)”, he took note of discussions regarding some draft conclusions which present elements considered not entirely persuasive. He also noted the provisional adoption of some of them to move the topic forward. However, the topic itself presents a theoretical dimension that cannot easily be set aside, making it harder to become the object of a fruitful exercise in the form of draft conclusions. He suggested that it would be useful to consider either a broader study of the topic or a narrower approach considering specific aspects of the possible application of the notion of jus cogens to treaty law.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said the content of the sixth report appears to be quite balanced in regard to the timing of immunity considerations, the acts of authorities of the forum State that may be affected, and identifying the organ competent to decide whether it applies. Reiterating support for draft article 7, he noted that it provides that immunity is subject only to the exception of specific crimes under international law and not to the “territorial tort” exception originally proposed. State practice does not offer sufficient basis for establishing the existence of this latter exception to the customary rule of immunity of State officials ratione materiae.
CHRISTINA HIOUREAS (Cyprus), commenting on “Peremptory norms of general international law (jus cogens)” said that, as an early and active proponent of the notion of jus cogens in international law, her delegation attached great importance to furthering work on the topic. With respect to the law of treaties, as the report points out in paragraph 39 and footnote 127, there were instances, even before the adoption of the Commission’s draft articles or the Vienna Convention, when States invoked the potency of jus cogens. In 1964, for example, Cyprus - based on the notion of peremptory norms - contested the validity of the 1960 Treaty of Guarantee between Cyprus, the United Kingdom, Greece and Turkey, if article 4 of the Treaty was to be interpreted as granting the right of forcible military intervention in violation of Article 2(4) of the Charter of the United Nations.
This position was also in line with the opinion submitted in 1959 by the then Legal Counsel of the United Nations, she said. This serves as an example that illustrates the need for interpreting treaties in a manner consistent with peremptory norms. Given that articles 53 and 64 of the Vienna Convention on the Law of Treaties address the invalidating effect of jus cogens, the current work could perhaps deal further with the question of who determined whether there is a conflict with jus cogens, as well as the question of possible legal consequences of such conflict.
MOHAMED IBRAHIM ABDELKHALEK ELSHENAWY (Egypt), speaking on “Peremptory norms of general international law (jus cogens)”, said that in draft conclusion 10, paragraph 3, it is important to delete “as far as possible” so that the paragraph reads: “To avoid conflict with a peremptory norm of general international law, a provision in a treaty should be interpreted in a way that renders it consistent with a peremptory norm of general international law (jus cogens).” The purpose is to avoid any exception that may create a possibility of interpreting any treaty provision in a manner that conflicts with a peremptory norm. Further, he stressed that there should also be no exceptions when a treaty becomes invalid due to the emergence of a new peremptory norm.
MAITE DE SOUZA SCHMITZ (Brazil), speaking on “Peremptory norms of general international law (jus cogens)”, said that draft conclusion 17, which deals with consequences of jus cogens and international organizations must retain an explicit reference to Security Council decisions. The Commission should not shy away from recognizing that the Council is also bound by jus cogens norms. Regarding criminal jurisdiction and immunities referred to in draft guidelines 22 and 23, she noted that while those guidelines had been referred to the Drafting Committee, the Special Rapporteur should maintain flexibility and find a creative way to elaborate an illustrative list of jus cogens norms.
Turning to “Provisional application of treaties”, she said it was commendable that the guidelines frequently refer to agreements between States. Since the intention of States cannot be assumed in the domain of provisional application of treaties, States must formally and explicitly agree on the provisional application of a treaty. Spotlighting a tension between the draft guidelines and the Vienna Convention, she said that the usage of the term mutatis mutandis in guideline 9 indicated that.
CEZARY MIK (Poland), speaking on “Protection of the atmosphere”, said that according to international law, measures to be taken by States to meet their international obligations are left to their broad discretion. The above‑mentioned paradigm is not sufficiently articulated in draft guideline 10 concerning the implementation. In addition, draft guideline 11 raises significant concerns because of the inconsistency between the text and its title. While the guideline refers to the principle of fulfilment of obligations in good faith irrespective of the source of international law from which they flow, the term “compliance” however is used in paragraphs 1 and 2 as referring only to respecting treaty obligations.
On “Provisional application of treaties” he said that, for the sake of stability and predictability of treaty relations, some reasonable period of notice as to when the termination of provisional application takes effect should be introduced in guideline 9. On draft guideline 6, it is necessary to consider introducing into the Guide a provision equivalent to article 70 of the Vienna Convention - a kind of formula whereby provisional application does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.
Turning to “Peremptory norms of general international law (jus cogens)” he noted that in draft conclusion 8, the forms of evidence of acceptance that a norm of general international law is a peremptory norm and the forms of opinio juris required for the emergence of customary norm are treated there as being equal. Such an approach could be misleading and hardly helpful, he said, encouraging some reflection on whether this provision is necessary in light of the aim of the Commission to specify the contours, content and effects of jus cogens.
LIONEL YEE (Singapore), on “Protection of the atmosphere”, took note of the Commission’s request for comments and observations from States to be submitted to the Secretary‑General. His delegation will be studying the 12 guidelines and commentaries in order to provide detailed views, he said, voicing support for the importance of international cooperation, which is at the core of these guidelines.
Turning to “Provisional application of treaties”, he noted his satisfaction that the Commission’s current work addresses concerns raised before, including by his country. “Our observations on these are available on PaperSmart,” he said, turning to the Commission’s proposal to annex draft model clauses on the guidelines. Expressing concern about the lack of examples involving Asian States in the draft model clauses, he said that more should be done to represent the diversity of State practice in this field.
Regarding “Peremptory norms of general international law (jus cogens)”, he said the lack of commentaries accompanying the draft conclusions has made it difficult for States to consider these. Welcoming draft conclusions 10 to 13, which seek to consolidate and affirm the legal effects and consequences of conflict of treaties with peremptory norms of general international law, he commended those conclusions as they are based on and consistent with the Vienna Convention on the Law of Treaties. On the other hand, draft conclusion 14 may not be appropriate or necessary because of the significant overlap with the procedures already established in that Convention.
PABLO ADRIÁN ARROCHA OLABUENAGA (Mexico) congratulated the Commission for the adoption of the draft guidelines on “Protection of the atmosphere”. The guideline relating to national implementation of obligations is in line with the mechanisms used by different States to apply the obligations emanating from international law, he said.
On the “Provisional application of treaties”, he congratulated the Commission for adopting the Guide on first reading. The 12 guidelines reflect a pragmatic view with a precise content that may facilitate their use and consultation by legal practitioners of States and international organizations. This and other additions ensure that the relation of article 25 of the Vienna Convention is fully addressed.
Turning to “Peremptory norms of general international law (jus cogens)”, he said that he applauded the fact that the majority of draft conclusions are based on items adopted by the Commission, such as the Vienna Convention and the articles on State responsibility for internationally wrongful acts of 2001. On draft conclusion 10, he welcomed the clarification that this provision does not render ineffective the rules of interpretation codified in the Vienna Convention.
PETR VÁLEK (Czech Republic), addressing “Protection of the atmosphere” questioned the purpose and value of the generalization of provisions frequently found in various treaty instruments. Such provisions do not have an autonomous life in international law and are instead a corollary of substantive provisions of various instruments. The treaty instruments which served as inspiration for the present exercise do have specific, substantive content. Thus, the limits of that exercise are reflected in draft guideline 2, paragraphs 2 and 3. Moreover, paragraph 1 of draft guideline 10 does not have to be included in the draft. Paragraph 1 of guideline 11 only repeats what is already universally accepted for all international legal obligations. On guideline 12, he expressed doubt that it is appropriate to include it, noting that the use of technical or scientific experts have a role to play in settling legal disputes. If the dispute concerns questions such as the validity of a treaty, there is no need for such experts.
Turning to “Provisional application of treaties”, he said that he was not convinced of the need for including draft guideline 7 on the formulation of reservations. It may cause confusion as far as the integrity of the legal regime of reservations is concerned. The reservations regime is single and uniformly applicable regardless of the material content of a treaty provision and whether such provision will be provisionally applied. This fact is blurred by the inclusion of the words “mutatis mutandis” in paragraph 1 of the guideline, implying that the relevant provisions of the Vienna Convention are not directly applicable. He cannot agree with such an assumption, he said, adding that the real issue is of the reservation’s timespan, namely limiting its duration to that of the provisional application of the treaty.
On “Peremptory norms of general international law (jus cogens)”, he noted that the Special Rapporteur’s approach is based on references to doctrine rather than international practice. A deeper analysis of international and national case law and State practice relevant to the topic would be appreciated, particularly in terms of the methodology used for identifying peremptory norms. “Jus cogens is a dynamically developing concept,” he noted, calling for a focus on how the peremptory character of a specific rule of international law can be ascertained.
FRANÇOIS ALABRUNE (France), expressing regret at the absence of some Special Rapporteurs, said their interaction with the Sixth Committee should be a priority. On “Protection of the atmosphere”, the Commission should consider the draft Global Pact for the Environment, a single universal framework to prevent the fragmentation of international environmental law. In this regard, the legal value of the draft guidelines on the protection of the atmosphere is questionable because though formulated as guidelines, on several occasions they mention State obligations. Paragraph 5 of the commentaries on guideline 10 states that the term “obligations” does not open any new obligations on States but refers to existing obligations under international law. This applies not only to draft guideline 10 but for all draft guidelines proposed, he said, calling for further clarification.
Turning to “Provisional application of treaties”, he noted that the Commission proposed to examine the issue of whether model clauses could be added to the draft. The adoption of the drafts of the Commission rests on the principle of providing Member States an opportunity to make determinations on a set of drafts on first reading. The decision to refer the questions to the second reading deprives States of this opportunity, he said, noting that nothing binds the Commission to complete this draft on first reading this year.
On “Peremptory norms of general international law (jus cogens)”, he said that in the three years since this topic was taken up in the programme of work, none of the draft conclusions provisionally adopted by the Drafting Committee were referred to the Commission “in its plenary format”. They were made public through interim reports published on the website of the Commission, but they were not debated in plenary and the Commission did not include them in its various annual reports. Further, no draft commentary on the conclusions was presented for consideration in the plenary, he pointed out, highlighting the value of commentaries in the consideration of the scope of the proposals. Such challenges to the normal working methods of the Sixth Committee undermine States’ confidence in the Commission’s work, he said.
METOD SPACEK (Slovakia), addressing “Protection of the atmosphere”, noted that it is the well‑known sovereign right of a State to choose the forms of national implementation of it in international obligations. In terms of compliance, paragraph 1 of draft guideline 11 is a mere restatement of the pacta sunt servanda principle. In guideline 12, the Commission is simply restating the principle of peaceful settlement of disputes, he recalled. It is usually upon the relevant jurisdiction deciding the particular dispute to request or use the relevant expertise.
Regarding “Provisional application of treaties”, he said that it is not necessary to define the scope of the guidelines. Instead, it would be sufficient to keep the purpose defined in guideline 2 and merge it with guideline 1. On draft guideline 9, the text could address the temporal aspect of the notification of intention not to become a party as a form of terminating provisional application. Moreover, the intention of a State to terminate the provisional application of a treaty does not necessarily have to coincide with notification by the same State of its intention to not become a party to the treaty, as paragraph 2 of that guideline presupposes.
On “Peremptory norms of general international law (jus cogens)”, he said the topic encompasses a number of complex and difficult issues; its complicated elements should be considered in a reflexive and cautious manner. Voicing concern that several proposed conclusions are based merely on doctrinal opinion rather than reflecting the State practice, he said that while the practice of States in respect of peremptory norms may not be sufficiently developed and may not be easily ascertained, this should not lead the Commission to abandon its usual work methods.
CHRISTOPHE EICK (Germany) said that regarding “Protection of the atmosphere”, the matter is crucial for sustaining life on Earth. Transboundary air pollution, ozone depletion and changes in atmospheric conditions leading to climate change must be addressed by the international community, he said, noting with satisfaction that the draft guidelines adopted by the International Law Commission remain within the understanding reached in 2013 on the scope of work on the topic.
Turning to “Peremptory norms of general international law”, he said that a draft conclusion on the procedure for invocation should be included. With regards to the adoption of an enumerative list of specific jus cogens norms, he said he did not think it necessary for the Commission to undertake that difficult task. Concerning draft conclusions 22 and 23, in their present form they deviate from the scope of the topic, which was to be limited to secondary rules of international law and to focus on the general effect of all rules of jus cogens. It remains unclear why it is wise to address a subset of the rules of jus cogens, he said, adding that he did not consider it prudent to revisit the discussion on exceptions of immunities ratione materiae.
In regard to “Provisional application of treaties”, he said that parties to a treaty should be afforded the opportunity to formulate reservations when agreeing to a provisional treaty. He welcomed the flexibility in the case of the provisional application of a treaty, and called for the second reading to provide further clarification on the relationship between the currently available means of termination.
YUSUKE NAKAYAMA (Japan), addressing “Protection of the atmosphere”, recalled that its preambular paragraph states: “The protection of the atmosphere from atmospheric pollution and atmospheric degradation is a pressing concern of the international community as a whole.” Considering that in 2015, the Paris Agreement on Climate Change recalled the concept of “common concern of humankind” in its preambular paragraph, it would be appropriate for the Commission to reconsider this paragraph in the second reading and update the discussion on this concept, he said.
Turning to “Peremptory norms of general international law (jus cogens)”, he voiced support for the Special Rapporteur’s approach of relying on State practice and the decisions of both international courts and tribunals to give content and meaning to the article 53 of the Vienna Convention on the Law of Treaties. An illustrative list of jus cogens would be useful if it included the grounds and evidence based on which the Commission considers the listed norms to have acquired the status of jus cogens. However, he stressed the need to avoid any misperception that the listed norms are given a special legal status distinct from other norms not included in the list.
ANDREJ SVETLICIC (Slovenia), speaking on “Provisional application of treaties”, said that since the topic is of great practical interest to States and international organizations, the end result should aim at assisting them in their treaty practice by providing comprehensive guidance both on the concept and practical aspects of provisional application. On draft guideline 6, he added, the issue of the source of the provisional application is still not sufficiently clear. Draft guideline 6 does mention that the binding legal effect derives from the agreement to provisionally apply the treaty, but it does not say why that agreement should be considered as binding.
MARTIN MANDVEER (Estonia), associating himself with the European Union, commented on “Protection of the atmosphere”, saying, as noted in guideline 10, that the cooperation of all States is of the utmost importance. Expressing support for the idea that States could realize the recommendations – for example through political declarations – he also voiced strong support for the inclusion of guideline 11 paragraph 2 concerning the compliance with international obligations and missing capabilities of some States. Recognition of specific challenges facing some States, especially developing and least developed countries, needs to be taken into account in the guidelines. Providing assistance is an essential tool to improve compliance with international obligations.
Turning to “Provisional application of treaties” and also associating himself with the European Union, he proposed merging draft guidelines 3 and 4 which are repetitive. Welcoming the inclusion of the draft model clauses intending to reflect best practice to the provisional application of treaties, he voiced support for efforts to formulate them for a wider range of situations that may arise.
On “Peremptory norms of general international law (jus cogens)”, he underlined the need to identify binding jus cogens norms on the basis of consensus. The requirement in draft conclusion 10 for interpretation of existing treaty provisions to be consistent with peremptory norms as far as possible was welcomed, as was the widening of draft conclusion 11 to also cover acts of international organizations that create obligations for States. On draft conclusion 14, regarding dispute settlement procedure, the Commission could further analyse the matter for various reasons; the draft conclusion and the commentary seem to be in contradiction. On draft conclusion 15, he expressed support for the proposed amendment in the commentaries designed to indicate that the elements required for the development of customary international law cannot give rise to a norm not in accordance with jus cogens.
RENE LEFEBER (Netherlands), noting that the form of a guide is appropriate for the topic ”Provisional application of treaties”, said the study should give guidance to States on how to use the instrument of provisional application, if they so choose. Further, in such cases, the guide should inform them of the legal consequences thereof, without imposing a particular course of action that might prejudice the flexibility of the instrument. More so, an analysis of State practice in light of the language of article 25 of the Vienna Convention should be the point of departure for the present study, he said.
Turning to “Peremptory norms of general international law (jus cogens)”, he said that many elements of jus cogens remain contested. This is also true of several aspects relating to the consequences of a violation of jus cogens. Voicing concern about the lack of clarity on the concept, its identification and application, he encouraged the Commission to evaluate its progress and not hesitate to return to topics discussed earlier in the light of later conclusions. He also suggested that draft conclusion 12 on the “elimination of consequences of acts performed in reliance of invalid treaty” should be renamed as “consequences of the invalidity of a treaty which conflicts with a peremptory norm of general international law”.
CARLOS JIMÉNEZ PIERNAS (Spain), addressing the new draft guidelines on “Protection of the atmosphere”, said that “implementation” and “compliance” can be synonymous in Spanish. He recommended they be modified to “national implementation” and “international compliance”. He also suggested that the comment on the scope of paragraph 1 of draft guideline 10 also refers to guideline 11. Regarding the mention of international organizations, unlike the guide regarding the provisional application of treaties which refers jointly to States and organizations, the draft guidelines on the protection of atmosphere focus on States. However, in the comment to draft guideline 10, it is noted that the term “national implementation” also applies to obligations of regional organizations such as the European Union. The wording of that sentence is unclear, he said.
Turning to “Provisional application of treaties” and draft guideline 7 regarding reservations, he noted that in addition to a reservation formulated at the moment a treaty enters into force, a reservation shall also take effect for the author during the provisional application. Another issue is the wording of the draft guideline in two paragraphs — one regarding States and the other regarding international organizations. The two could have been addressed jointly. Concerning draft guideline 9 on termination and suspension, he expressed agreement with the new version. He would like to see a mention of “mixed agreements” concluded by the European Union on one hand and one or more States or international organizations on the other, he said.
VISHNU DUTT SHARMA (India), focusing on “Peremptory norms of general international law”, said draft conclusion 14 – recommending compulsory dispute settlement through the International Court of Justice in the case of conflict between a treaty and jus cogens norm – should also be analysed in light of concerns of some members in negotiating article 66 of the Vienna Convention. It should not be restricted to the International Court of Justice alone. On draft conclusion 17, referring to the invalidity of binding resolutions of international organizations, the Commission should study in detail and analyse the conclusion’s impact in terms of action taken under Chapter VII of the United Nations Charter and the application of Article 103 in order to provide more clarity on whether a Charter obligation overrides an obligation that represents a jus cogens norm.
On the “Protection of the atmosphere”, he welcomed the suggestion of including cooperative mechanisms in the relevant guidelines. However, when finally adopted, the guidelines would be available as a material to be followed and used to the suitability of conditions and willingness of States and not to be implemented, as such, as treaty provisions. The guidelines will therefore not create the binding international law themselves. In summary, the guidelines should work as a reminder to States about their obligations towards the protection of the atmosphere and to carry them out in accordance with the procedure envisaged in the relevant international instrument.
Turning briefly to “Immunity of State officials from foreign criminal jurisdiction”, he said that immunity should be examined as a concept, without linking the same to the questions of immunity in reference to the International Criminal Court.
JAMES KINGSTON (Ireland), associating himself with the European Union, addressed “Provisional application of treaties” and welcomed the decision in draft guideline 6 to replace the phrase “the same legal effects” with “a legally binding obligation to apply the treaty or part thereof”. The clarification in paragraph 5 of the commentary — that the new formulation does not imply that provisional application has the same legal effect as entry into force — is another useful addition.
On draft guideline 7, he said no case has been identified where a treaty has provided for the formulated reservations in relation to provisional application, or where a State has formulated reservations to a treaty that is being applied provisionally. Calling for further study of the practices of State and international organizations before the adoption of that guideline, he said the development of model clauses provides useful assistance where provisional application is considered appropriate. However, there is a need for more flexibility in an area where different institutional and legal systems may seek to use provisional application.
ANDREI N. METELITSA (Belarus), speaking on “Peremptory norms of general international law (jus cogens)”, said that maintaining a methodological basis for the work is exclusive State practice. International bodies can only help identify peremptory norms to be established. On guideline 5, the jus cogens norm is not quite clear, as an international treaty can only reflect existing jus cogens. Draft conclusion 7 may lead to conditions where States are compelled to use norms they have had reservations against. Draft conclusion 9 requires further clarification, as the decision of international courts and tribunals is not State practice; this should be adopted by all States so it can become jus cogens. In draft conclusion 10, item 2, he noted the term “void” must be replaced by “invalid.” However, in item 1 of conclusion 11 and item 1 of conclusion 12, the opposite is true, and “invalid” must be replaced by “void”. Conclusions 22 and 23 should be eliminated, and a more general rule should be used.
Turning to “Protection of the atmosphere”, in guideline 1, he stated the two main sources of atmospheric pollution are natural factors or man‑made ones. Natural factors would include animal emissions, plants and wildfires. As it is, it perhaps is not accurate to speak of “human emissions”; this should be better drafted. On guideline 2, item 3, he proposed either listing all dual‑impact substances or not including any and leaving that to the discretion of States. On guideline 3, States should apply national law in cases that involve higher standards, and on guideline 9, the focus of item 1 should not be avoidance of conflict but development of norms of international law.
Turning to “Provisional application of treaties”, he said States must define which provisions of a treaty would not apply before its entry into force.
PIRANAJ THONGNOPNUA YVARD (Thailand) said that, with regard to “Provisional application of treaties”, the draft guide adopted by the Commission on the first reading helps to clarify the scope and application of article 25 of the Vienna Convention, in particular questions regarding the provisional application of international organizations and the legal effects of the provisional application of a treaty or a part of a treaty, among others.
Turning to “Peremptory norms of general international law (jus cogens)”, she said that the threshold for the identification of jus cogens needs to be higher and more precise that simply “a large majority of States”, which is lower than what the term “as a whole” would require. She also cautioned that an illustrative list of jus cogens may actually hinder the development of jus cogens itself, which may and should evolve over time. She would be interested to study the proposals by the Special Rapporteur on the issue in his next report, she said.
VICTORIA HALLUM (New Zealand) said that she supported the idea that the rules of international law relating to “Protection of the atmosphere” and other relevant rules of international law should be identified, interpreted and applied in a coherent manner. In this regard, the emphasis in draft guideline 11 on States complying with the rules and procedures in the relevant agreements to which they are parties is helpful. She also supported the emphasis placed in draft guideline 12 on the settlement of disputes by peaceful means. However, she noted that issues related to implementation, compliance and dispute settlement will rest primarily within the ambit of the relevant international legal regime.
Turning to “Peremptory norms of general international law (jus cogens)”, she said the topic would have real practical value for States, including for domestic courts. However, given the nature of the jus cogens norms and their place in the hierarchy of sources of international law, the lack of State practice in this area and the serious consequences flowing from either breach or conflict with a peremptory norm, the Commission should continue to take a cautious and balanced approach to this work.
Regarding “Protection of the environment in situations of occupation”, she said that the law of occupation is an area of law that was developed in the early twentieth century and it is important to consider the issue in the contemporary context and to address the linkages between the law of occupation, international human rights law and international law of the environment. She said she agreed that consultations with the United Nations Environment Programme (UNEP) and the International Committee of the Red Cross (ICRC) are important in this context, as is the continuing importance of ensuring this work aligned with international humanitarian law.
ALINA OROSAN (Romania) said of “Protection of the atmosphere” that guideline 10 on implementation describes the different forms national implementation of international obligations can take. As this is a general topic, applicable to all other areas of international law, she expressed her doubt of its usefulness in the current chapter. A more direct link with the specificity of international obligations on protection of the atmosphere is necessary.
On the “Provisional application of treaties”, she said that on this topic her delegation associated itself with the European Union. She welcomed the revised version of the commentaries, which reflect the requests for clarification made on the occasion of the previous discussion. While she acknowledged the flexible nature of provisional application, the pursued objective of the guidelines is to provide further clarity to the subject of international law so that practice can be adjusted accordingly.
Turning to “Peremptory norms of general international law (jus cogens)”, she said she would have liked to have draft conclusions and relevant commentaries that express the view of the Commission on the subject matter, considering that some important work has already been invested in the topic. That would have ensured an adequate dialogue between the Commission and the Sixth Committee. The work on this topic should be based on State practice rather than on doctrinal approaches. The Special Rapporteur should also pay greater attention to existing relevant international law and ensure that, in the process of the consideration of this topic, it does not depart from the normative framework already in place. At the same time, consistency should be ensured with the other topics considered or still being considered by the Commission in order to prevent fragmentation or conflicting statements.
PAULO ALEXANDRE COLAÇO PINTO MACHADO (Portugal) said on “Protection of the atmosphere” that it is a topic to which his delegation attaches great importance. The study of the topic from a legal perspective could be a good contribution to finding solutions at a broader diplomatic level. The 12 draft guidelines submitted by the Commission reflect a balanced and positive approach to the topic. He supported the wording for draft guideline 12, establishing that disputes should be settled by peaceful means.
On “Provisional application of treaties”, he said that the provisional application of a treaty is not compatible with Portugal’s Constitution. He welcomed the revised text of the draft guidelines, as it addresses the majority of the concerns expressed in his delegation’s previous interventions. Both the text of guideline 3 and the general commentary affirm beyond doubt the voluntary nature of the provisional application mechanism. He also welcomed the changes in the text of guideline 6 as the new wording leaves less room for doubts.
Turning to “Peremptory norms of general international law (jus cogens)”, he said on methodology that the procedure adopted by the Commission is compatible with a final and systematic revision of the conclusions, if need be, at the end of the discussion. States are being given an opportunity to comment on positions being considered by the Commission. Nonetheless, the Commission could reconsider its methodology. In particular, he would welcome having all reports and other relevant elements, including the comments by the Special Rapporteur and the Commission, made available in a consolidated and up to date form for States to comment upon.
AMRITH ROHAN PERERA (Sri Lanka), focusing specifically on “Protection of the atmosphere”, said that the Paris Agreement of 2015 declared that climate change is a “common concern of humankind”. This concept should be reflected in the Commission’s present work. The Commission should consider replacing “pressing concern of the international community as a whole” with “common concern of humankind”. He also welcomed the fifth preambular paragraph in reflecting consideration of equity and the special situations and needs of developing countries, which is in line with several declarations and conventions, including article 3 of the 1992 United Nations Framework Convention on Climate Change and consistent with the current trend of legal instruments dealing with the global commons.
Bearing in mind that collective international efforts to define and correct the depredation of humankind on planet Earth is a relatively recent effort, he stressed that the international community needs to be aggressive in its approaches to save the planet for future generations. Further, the language of preambular paragraph 6 should be strengthened to reflect scientific warnings.
ZAMAKHINA EVGENIIA (Russian Federation), speaking on “Provisional application of treaties”, observed the trend of more active attempts to use provisional application. The number of international agreements provisionally applied by the Russian Federation remains relatively unchanged, at approximately 100. Provisional application of treaties should only be used in those cases when there is a real pressing need to begin implementing the international treaty without awaiting its entry into force. Nevertheless, a wide range of practical questions emerge, she said, citing a situation where, within a regional economic integration organization, the legislation of one of the members does not allow for the provisional application of a treaty. In the interests of integration, for those States that cannot provisionally apply the treaty, it becomes obligatory from the moment they express agreement to the treaty. There remained a lack of clarity regarding the legal nature of the obligations.
The topic of “Peremptory norms of general international law (jus cogens)” is extremely crucial, she said, welcoming the Commission’s plans of possibly moving conclusion 10 to a separate draft. The existing text will be appropriately drafted and amended in accordance with the relevant articles of the Vienna Convention. She said she was not convinced that the scope of the draft conclusions should include a dispute settlement mechanism that would envisage submission to the International Criminal Court. That was not in line with the general forms of these drafts, she said, also pointing out that States made a large number of reservations to article 66 of the Vienna Convention which envisages the procedure of legal settlement.