‘International Law Holds Us Together Even in Times of Peril’, Commission’s Chair Says, as Sixth Committee Takes Up Annual Report
Speakers Debate First Cluster on Treaties’ Provisional Application, Protection of Atmosphere
Opening International Law Week today, the Sixth Committee (Legal) began its consideration of the International Law Commission’s report, with delegates analysing the draft articles and guidelines on various topics, while calling for more inclusivity in the Commission’s composition and working methods.
“International law holds us together even in times of peril,” Mahmoud Daifallah Hmoud (Jordan), Chair of the International Law Commission, said as he introduced the report of the Commission’s seventy‑second session (document A/76/10). Noting that the Commission adopted an entire set of draft guidelines, comprising a draft preamble and 12 draft guidelines, on the “Protection of the atmosphere,” he stressed that the scientific evidence is clear that human and natural environments can be adversely affected by changes caused by human activities in the condition of the atmosphere.
Pointing to the transboundary issues this raises, he noted that draft guideline 3 is a central provision which sets out the “Obligation to protect the atmosphere”. He also drew attention to draft guideline 5, according to which the atmosphere is a natural resource with a limited assimilation capacity. “This is an important orientation of the draft guidelines,” he said, adding that it highlights the point that the atmosphere is a finite resource, which requires sustainable use.
The Commission also completed a second reading of “Provisional application of treaties,” he said, adding that the Guide adopted on that topic, comprises 12 draft guidelines, commentaries and an annex containing examples. The purpose is to provide assistance to States, international organizations and other users concerning the law and practice on the provisional application of treaties. Further, the Commission provisionally adopted various draft articles on “Immunity of State officials from foreign criminal jurisdiction”, that deal with procedural aspects and safeguards.
Outlining the Commission’s consideration of “Succession of States in respect of State responsibility”, he said it aims at clarifying the interaction and filling possible gaps between the law of succession of States and the law of responsibility of States for internationally wrongful acts. He also noted the establishment of a Study Group on “Sea‑level rise in relation to international law”, adding that next year it will focus on issues related to Statehood, as well as the protection of persons affected by sea‑level rise.
In the ensuing debate, speakers noted the significant logistical challenges of the Commission’s seventy‑second session in a hybrid format. Acknowledging the valuable role that body plays in the progressive development and codification of international law, speakers also offered suggestions regarding its specific products.
Sweden’s delegate, also speaking for Denmark, Finland, Iceland and Norway, commended the Commission’s achievements despite not being able to hold its traditional exchanges of information with stakeholders due the pandemic. On the draft articles on “Protection of the atmosphere”, he welcomed the inclusion of the phrase “common concern of humankind” in the third preambular paragraph in lieu of “pressing concern of the international community as a whole”.
Cuba’s delegate emphasized the importance of the principle of shared but differentiated responsibility in protecting the atmosphere; developed countries must have a greater responsibility because they have produced greater pollution. She called on States to ensure that the Commission’s work in this area is translated into an international convention.
Sierra Leone’s delegate, also noting support for the phrase “common concern of humankind”, welcomed the preamble’s recognition of developing States’ special situation and needs and expressed full support for the addition of the term “energy” in defining atmospheric pollution. He also stressed that the progressive development and codification of international law must always be inclusive and all‑embracing in the consideration of texts, State practice, precedents and doctrines.
Along those lines, Ghana’s delegate, speaking for the African Group, called on the Commission to draw inspiration from the world’s principal legal systems, including African customary law. Underscoring the need for inclusivity when considering legal texts, State practice, precedents and doctrines, he pointed out that only one African member is currently serving as a special rapporteur and another as co‑chair of a study group. The Commission must develop cooperative relationships with regional international law commissions, such as the African Union Commission on International Law, he said.
Delegates also welcomed the Commission’s efforts to codify State practice in its draft guidelines on “Provisional application of treaties”.
South Africa’s delegate, noting that the work on the topic will ensure proper interpretation and minimize abuse of the provisions, also pointing out that, when done correctly, the provisional application of treaties could contribute to the rapid implementation of certain treaty provisions.
However, France’s representative, while welcoming the Commission’s efforts to use State practice in this area, stressed that the point is to provide guidelines rather than establish new legal obligations. The provisional application of treaties must remain an exceptional practice, he added.
Colombia’s delegate also struck a cautionary note, stressing that the Commission’s work on “Protection of the atmosphere” and “Provisional application of treaties” constitute “soft law” and cannot provide a legal obligation for States. Joining other speakers, she commended the Commission for its hybrid working methods.
At the outset of the meeting, Chair Alya Ahmed Saif Al-Thani (Qatar) recalled the recent passing of Judge James Crawford of Australia, who was a member of the International Law Commission, an experienced practitioner of international law and a Judge on the International Court of Justice. Noting that international law “has lost one of its most important and effective proponents”, she extended condolences to his family before leading the Committee in a moment of silence.
Also speaking today were representatives of Latvia (also speaking for Estonia and Lithuania), Singapore, Iran, Egypt, Belarus, Australia and Portugal as well as a representative of the European Union, in its capacity as an observer.
The Sixth Committee will next meet at 3 p.m. on Tuesday, 26 October, to continue its consideration of topics in Cluster I from the report of the International Law Commission.
Introduction of International Law Commission Report
MAHMOUD DAIFALLAH HMOUD (Jordan), Chair of the International Law Commission, introducing the report of the Commission’s seventy‑second session (document A/76/10), stressed that “international law holds us together even in times of peril”. Highlighting the relationship between the Commission and the Sixth Committee, he said the imprimatur of the Committee serves as the final seal of approval for any instrument based on drafts prepared by the Commission. Underscoring the importance of receiving information on State practice, he said this collaborative working method makes the Commission’s work unique. Also noting the deaths of two former members of the Commission, he recalled the contributions of Judge Alexander Yankov, former Chair of the Commission and Special Rapporteur for the topic “Status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier”, as well as Judge James Crawford, Special Rapporteur for the “Responsibility of States for internationally wrongful acts”.
Turning to Chapter IV of the report on the “Protection of the atmosphere,” he said that following a substantive review, the Commission adopted the entire set of draft guidelines on the topic, comprising of a draft preamble and 12 draft guidelines, together with commentaries thereto. Recalling that this topic was first placed on the Commission’s programme of work in 2013, he emphasized: “the scientific evidence, fortified by more recent reports, is clear.” Both the human and natural environments can be adversely affected by certain changes caused by human activities in the condition of the atmosphere. Therefore, the international community must consider the critical questions relating to transboundary and global protection of the atmosphere, focusing mainly on transboundary air pollution, ozone depletion, as well as changes in the atmospheric conditions leading to climate change.
The draft preamble sets out the contextual framework of the guidelines and consists of eight preambular paragraphs, he continued. Draft guidelines 3 to 8 form the core of the text of the draft guidelines, with draft guideline 3 as a central provision that sets out the “Obligation to protect the atmosphere”. Draft guidelines 4, 5 and 6 address “Environmental impact assessment”, “Sustainable utilization of the atmosphere”, and “Equitable and reasonable use of the atmosphere”, which all flow from draft guideline 3. Highlighting draft guideline 5, according to which the atmosphere is a natural resource with a limited assimilation capacity, he underscored that “this is an important orientation of the draft guidelines,” adding that it highlights the point that the atmosphere is a finite resource, which requires sustainable use.
Turning to the other topic on which the Commission completed a second reading, “Provisional application of treaties,” he noted that it is addressed in Chapter V of the report. The Guide to Provisional Application of Treaties, adopted on second reading, comprises 12 draft guidelines, with commentaries thereto, and an annex containing examples of provisions on provisional application of treaties. The purpose of the Guide is to provide assistance to States, international organizations and other users concerning the law and practice on the provisional application of treaties. Noting that the Guide takes as a point of departure from article 25 of both the 1969 and 1986 Vienna Convention on the Law of Treaties, he said it tries to clarify and explain this article, based on the practice of States and international organizations.
Turning to Chapter VI of the report, which relates to the topic “Immunity of State officials from foreign criminal jurisdiction,” he noted that following the debate in plenary, the Commission decided to refer draft articles 17 and 18 to the Drafting Committee, and provisionally adopted draft articles 8 ante, 8, 9, 10, 11 and 12, together with the commentaries thereto. These draft articles deal with procedural aspects and safeguards, he said, adding that they seek to address sequentially the various steps that need to be taken to facilitate an eventual determination of immunity, starting with the process of examination, notification, invocation and possible waiver, and requests for information.
The topic of “Succession of States in respect of State responsibility”, he noted, is addressed in Chapter VII. It aims at clarifying the interaction and filling possible gaps between the law of succession of States and the law of responsibility of States for internationally wrongful acts, while bearing in mind the importance of maintaining consistency with the previous work of the Commission on various aspects of the two areas. Noting that the Commission decided to refer five new proposed draft articles, as contained in the fourth report, to the Drafting Committee, he turned to Chapter VIII which is a consideration of the topic “General principles of law”. The Commission decided to refer the six draft conclusions, as contained in the second report, to the Drafting Committee, he said.
Turning to Chapter IX, which is the last substantive chapter and deals with the topic “Sea‑level rise in relation to international law”, he noted the establishment of a Study Group and its programme of work, based on the three subtopics, namely Law of the Sea, Statehood and human rights. Members of the Study Group considered the views expressed by the Sixth Committee, State practice and the work of the International Law Association and reflected on questions of interpretation of the United Nations Convention on the Law of the Sea with regards, in particular, to ambulatory versus fixed baselines. They further considered other sources of law as well, as questions concerning the potential permanency of the exclusive economic zone and the continental shelf, the relationship between sea‑level rise and article 62, paragraph 2, of the Vienna Convention on the Law of Treaties, and the status of islands, artificial islands and rocks. The work of the Study Group next year will focus on issues related to Statehood, as well as those related to the protection of persons affected by sea‑level rise, he noted.
Statements on Cluster I
HAROLD ADLAI AGYEMAN (Ghana), speaking for the African Group, emphasized the importance of the International Law Commission’s mandate to assist the General Assembly in promoting the progressive development and codification of international law, which must always be inclusive when considering legal texts, State practice, precedents and doctrines. To that end, he suggested that the Commission develop cooperative relationships with regional international law commissions ‑ such as the African Union Commission on International Law ‑ and draw inspiration from the world’s principal legal systems, including African customary law.
Noting progress made on various topics during the Commission’s productive hybrid session ‑ on which the Group’s respective delegations will comment specifically ‑ he spotlighted the Commission’s decision to place in its long‑term programme of work the topic “Subsidiary Means for the Determination of Rules of International Law”, based on a proposal by Sierra Leone. He also pointed out that only one African member is currently serving as a special rapporteur, and another as co‑chair of a study group. He called on the Commission - when adding new topics ‑ to consider a balanced approach that accounts for a topic’s practical interest to Member States as well as in the selection of special rapporteurs. This could help enhance the legitimacy of the Commission’s work, he added.
Mr. GUSSETTI, representative of the European Union, in its capacity as observer, welcomed the content of Chapter IV on “Protection of the atmosphere”, particularly its recommendation for an integrated approach to combating air pollution and its balanced guidelines. He emphasized the importance of the precautionary principle, recommending that it be applied to all areas. He also welcomed the content of paragraph 4 of guideline 3, which says that the reference to States for the purposes of the draft directive reflects the fact that States have the possibility to act individually or jointly, as appropriate. The European Union will apply these directives to produce standards, and to ensure their implementation, he said.
Regarding Chapter V, “Provisional application of treaties”, he welcomed the recommendations of the Guide to the Provisional Application of the Treaties. The European Union actively participated in the discussions on the Guide, he noted, adding that he was pleased that its observations were followed in the final text. One example of that was the mention that the scope of application is not limited to States, but also includes international organizations. Another was the Commission’s emphasizing the flexible nature of treaties. However, he said he regretted that the Commission did not provide any clarification regarding the requirement of express acceptance and the inapplicability of the legal regime.
Mr. NESSER (Sweden), also speaking for Denmark, Finland, Iceland and Norway, noting the Commission’s challenging workload, commended its achievements despite not being able to hold its traditional exchanges of information with stakeholders due the COVID‑19 pandemic. Drawing attention to the Commission’s concerns about the effects of budgetary constraints, he said he agreed that it is essential for all members of the Commission to be able to attend meetings and that all Special Rapporteurs have the research assistance necessary for the preparation of reports. Stressing the need for adequate resources to be provided from the regular United Nations budget, he also voiced her bloc’s willingness to consider the establishment of a trust fund for those purposes.
Turning to the “Protection of the atmosphere”, he welcomed the inclusion of the phrase “common concern of humankind” in the third preambular paragraph in lieu of “pressing concern of the international community as a whole”. However, he questioned the choice of the expression “prudence and caution” in draft guideline 7 on intentional large‑scale modification of the atmosphere, voicing the group’s preference for the term “precautionary approach” as a more relevant point of reference.
On the “Provisional application of treaties”, he welcomed the adoption of the Guide to Provisional Application of Treaties, including the draft guidelines, the commentaries thereto and a draft annex containing examples of provisions on provisional application. He also praised the Commission’s work on the legal basis of provisional application, highlighting that the issue of provisional application arises from the time of the adoption of the text of the treaty, which provides the legal basis for provisional application. Commending the final formulation of guideline 4, he went on to note that the term “declaration” is not meant to refer to the legal regime concerning unilateral declarations of States, which does not deal with the provisional application of treaties.
MĀRTIŅŠ PAPARINSKIS (Latvia), associating himself with the European Union and also speaking for Estonia and Lithuania, said the draft guidelines on “Protection of the atmosphere” must be read together with the related commentaries. Taking note of the commentaries’ thorough analysis of State practice, judicial decisions and scholarship, he highlighted the Drafting Committee’s discussion on the 2013 understanding of the Commission. While there are grounds for reasonable disagreement, he approved of the approach adopted in preambular paragraph 8 and paragraph 2 of draft guideline 2. Taken together, these provisions provide a blueprint for the Sixth Committee and the International Law Commission for work going forward.
The Commission’s guide on the “Provisional application of treaties” is likely to be of considerable assistance to practitioners, he said, welcoming further examples of provisions and citing several instances where the guide and commentaries answer important questions. The guide is flexible and does not purport to be comprehensive, he said, adding that provisional application is essentially voluntary and optional, and States and international organizations may agree on more appropriate solutions not identified in the guidance. However, he noted that he would have appreciated further clarification in the commentaries to draft guideline 4(b) with respect to the stated requirement for express acceptance and on the inapplicability of the legal regime of unilateral declarations regarding provisional application through a declaration.
Turning to “Other decisions and conclusions of the Commission”, he said the Commission will likely face an important choice to decide on at least one new topic in 2022. In this vein, he welcomed the Commission’s decision to include in its long-term programme the issue of “Subsidiary Means for the Determination of Rules of International Law”, which meets the criteria for selecting topics. Indeed, the topic is likely to be of particular importance for practitioners in and before domestic courts and specialized and regional international tribunals and review bodies, he said.
BURHAN GAFOOR (Singapore), focusing on “Protection of the atmosphere”, expressed support the Commission’s recommendation on the draft guidelines, which provide valuable guidance and will be of practical use to States. For example, draft guideline 8 addresses the obligation for States to cooperate with each other and with relevant international organizations for the protection of the atmosphere, he said.
Turning to the topic “Provisional application of treaties”, he welcomed the amendments to emphasize the requirement of consent to the provisional application of a treaty between the States and international organizations in guideline 4. Regarding draft guideline 6 on “Legal effects”, he said it was his understanding that an agreement between States or international organizations to provisionally apply a treaty can create a legally binding obligation. Whether any such legally binding obligation is created is ultimately dependent on the intention of the parties and what they have agreed. In situations where there is an obligation on States or international organizations to provisionally apply a treaty or part of a treaty, they must do so in good faith, he said.
ALHAJI FANDAY TURAY (Sierra Leone), associating himself with the African Group, said the process of progressive development and codification of international law must always be inclusive and all‑embracing in the consideration of texts, State practice, precedents and doctrines. Related efforts must also draw inspiration from the world’s main legal systems, including African customary law, he said.
Turning to the “Protection of the atmosphere”, he said he agreed with retaining a short reference to the “understanding” in the preamble to assist with interpreting the adopted guidelines and commentaries within the context of the artificial limitation. In preambular paragraph 3 on pollution and degradation, he noted his support for the more established phrase “common concern of humankind”. Welcoming in the preamble the recognition of developing States’ special situation and needs, he also expressed full support for the addition of the term “energy” in defining atmospheric pollution, which aligns with such existing international instruments as the Convention on Long‑Range Transboundary Air Pollution. However, on the deliberate exclusion of certain settled principles of international environmental law in guideline 2, he said this must not set a precedent in the Commission’s work and cannot be a basis to question well‑established status and implications regarding States’ obligations under international law.
While the “Provisional application of treaties” has become a tool in State practice to give effect to all or some of a treaty’s provisions pending its entry into force, he said Sierra Leone’s constitutional law still requires internal approval for provisional application. Agreeing in principle with guideline 3 to the extent that the provisional application of a treaty must be based on provisions aligned with the Vienna Convention on the Law of Treaties, he said the second part of the general rule requires further consideration. In situations where a second instrument or arrangements are related to a treaty’s provisional application, attention must be paid to the principle of representation and inclusion, which must inform resolutions adopted at international organizations and intergovernmental conferences. In addition, such resolutions must not be accorded the same weight as agreements between States on a treaty’s provisional application.
In regard to the addition of new topics, he called on the Commission to consider a balanced approach, noting that only one African member currently serves as a special rapporteur. While two current African members have successfully proposed topics for the long‑term work programme, he said the Commission might consider addressing Africa’s serious underrepresentation among special rapporteurs, recalling the recent nomination for re‑election of Charles Jalloh.
NASER ASIABI POURIMANI (Iran), on the “Protection of the atmosphere”, commended the Commission’s draft guidelines, highlighting the first preambular paragraph’s reference to the atmosphere as “natural resources”. However, for equitable utilization of this resource, consideration must be given to the international community, particularly developing countries and vulnerable groups. On guideline 8, he welcomed the addition of the word “technical” in paragraph 2. However, the illegal unilateral coercive measures being taken on Iran remain the main impediment to any cooperation in this area. Obstructions with respect of the transfer of advanced technologies, including those related to renewable energy, placed barriers on the import of medicines and pesticides for agriculture, livestock and poultry, he said, adding that the industry has experienced problems with the transfer of funds and commerce. Therefore, wherever cooperation is endorsed as an obligation, there should also be a clause containing an obligation to refrain from imposing measures that render such cooperation impossible. Draft guidelines 10 and 11 should be read together with draft guideline 8.
Commenting on the “Provisional application of treaties”, he welcomed the formulation adopted by the Commission in guideline 4, as well as the proposed draft clause model in annex II. However, with regards to guideline 2, he stated that the provisional application of a treaty only produces limited legal effects during the specific period mutually agreed upon in its application. Further, guideline 8 will undermine the willingness of countries to apply treaties provisionally.
Turning to “Other decisions and conclusions of the Commission”, he welcomed the inclusion of “Subsidiary Means for the Determination of Rules of International Law” to the Commission’s long‑term programme of work. However, the Commission should take into account its constraints on the subsidiary means, particularly the one determined in article 59 of the same statute on the relative effect of the decisions of the court. On part V of the syllabus contained as an annex to the report, he added that he is not convinced that the second prong of the topic is feasible for progressive development.
Mr. ALABRUNE (France), noting the pandemic’s effect on the International Law Commission’s work, highlighted the efforts made to adapt and overcome significant logistical challenges to organize its seventy‑second session in a hybrid format and produce a rich, constructive annual report. He stressed the need to improve the dialogue between the Sixth Committee and the Commission, underscoring that draft articles submitted by the Commission to the General Assembly must be constructively considered. Noting that the draft articles on crimes against humanity were submitted two years ago, he said that a lack of follow‑up sends a negative signal for the progressive development of international law.
Turning to the “Protection of the atmosphere”, he emphasized that this topic is important for humankind and future generations and welcomed the Commission’s useful, balanced draft guidelines. These guidelines do not contain international obligations; rather, they provide clarification and facilitate the implementation of States’ obligations to protect the atmosphere.
On the “Provisional application of treaties”, he welcomed the Commission’s efforts to use State practice in this area. The aim, he noted, is to provide guidelines rather than establish new legal obligations. The provisional application of treaties must remain an exceptional practice, he added.
On the subject of “Other decisions and conclusions of the Commission”, he expressed hope that the International Law Seminar will be able to occur in 2022, as it allows young legal specialists from developing countries to familiarize themselves with the Commission’s work. Towards that end, France has contributed to the Seminar’s trust fund, he said.
AHMED ABDELAZIZ AHMED ELGHARIB (Egypt), aligning himself with the African Group, underlined the importance of the Commission receiving examples of State practices. Turning to the Commission’s guidelines on “Protection of the atmosphere”, he said that it includes many important guidelines for preventing the pollution and degradation of the atmosphere. Highlighting the Commission’s definitions of pollution and degradation, he welcomed guideline 3 on the obligation to protect the atmosphere by exercising due diligence and taking appropriate measures in accordance with international law. Also pointing to guideline 4, according to which States have the obligation to ensure an environmental impact assessment of proposed activities under their jurisdiction or control period, he noted that his country will be hosting the Climate Change Conference in 2022.
On the topic, “Provisional application of treaties”, he stressed the importance of considering the topic, adding that the Commission’s examination of it and preparation of the guide will enable States to be guided by it when they implement treaties provisionally. Also welcoming the annex that was attached, which contains examples of some of the practical applications in bilateral and multilateral treaties, he reaffirmed support for the Commission’s work in the development of international law.
PAVEL EVSEENKO (Belarus) underscored his country's support for the draft guidelines on the “Protection of the atmosphere”. Guideline 9 is designed to harmonize the international obligations of States and to prevent the fragmentation of international law on the protection of the atmosphere. He went on to say that he considered it useful that, when interpreting and applying norms of international law, regional or special norms should not create obligations for third parties without their consent. In that connection it is important to not only refer to article 30, paragraph 3(c), of the 1969 Vienna Convention on the Law of Treaties, but also to article 31 and to articles 34 to 38 (Section Four: Treaties and Third States).
On the “Provisional application of treaties”, he proposed that, in regard to guideline 9, a right be created which allowed contracting parties to request the termination of the provisional application of an international treaty when one of them has notified its intention not to become a party to the international treaty in case the provisional application of an international treaty is of a lasting nature.
He welcomed the Commission’s decision to include the topic “Subsidiary means for the determination of rules on international law” in its long‑term programme of work. The topic reflects the needs of States with respect to the progressive development and codification of international law. An in‑depth discussion of article 38, subparagraph 1(d) of the Statute of the International Court of Justice would certainly expand research work in identifying rules of international law, he said.
ARIANNA CARRAL CASTELO (Cuba), addressing the topic, “Protection of the atmosphere”, said that the draft guidelines must be coherent with established environmental treaties, account for the considerations of the Intergovernmental Panel on Climate Change and aim to identify sources of atmospheric pollution. She emphasized the importance of the principle of shared but differentiated responsibility in protecting the atmosphere; developed countries must have a greater responsibility because they have produced greater pollution. She called on States to ensure that the Commission’s work in this area is translated into an international convention.
On the “Provisional application of treaties”, she said that this practice must not be abused and drew attention to the Vienna Convention on the Law of Treaties in this regard. To that end, she suggested caution regarding sovereign declarations pertaining to international agreements. She also stressed that a treaty’s provisional application should not substitute its definitive entry into force. This application is linked to the principle of the willingness of the parties, who decide on the provisional application when they establish the scope of the convention.
ALEXANDRA HUTCHISON (Australia), welcoming the guide to “Provisional application of treaties”, said that it is a useful compilation of contemporary practice. Provisional application is an important and practical mechanism available to States and international organizations where circumstances call for the application of some or all provisions of a treaty prior to its entry into force. Noting that a treaty should not be provisionally applied in a manner that in effect bypasses important domestic or constituent procedures, she said the commentary to the guide provides important clarity on this point and strikes a good balance between protecting compliance with domestic procedures and facilitating application.
MATHU JOYINI (South Africa), associating herself with the African Group, said that, in regard to the “Protection of the atmosphere”, the topic was essential for sustainable development and the wellbeing of people and the environment. Human activities harmful to the environment often impact beyond national boundaries. Therefore, the topic is a matter of international concern which requires clear, ambitious and credible international legal norms that has consent of all countries. To that end, the guidelines are a significant contribution in quantifying general principles and bringing coherence to this area of law.
On the “Provisional application of treaties”, she commended the report by the Special Rapporteur and the accompanying guidelines. Further, she underlined the importance and value of the comments by States on their practices. In particular, she noted that, when done correctly, the provisional application of treaties could contribute to the rapid implementation of certain treaty provisions. The work on the topic will ensure proper interpretation and minimize abuse of the provisions.
LUCIA TERESA SOLANO RAMIREZ (Colombia) welcomed the Commission’s holistic approach and attention to Member State practice in its draft guidelines on the “Protection of the atmosphere” and on the “Provisional application of treaties”. Both products constitute “soft law”, she said, stressing that they cannot ‑ under any circumstances ‑ provide a legal obligation for States. She also called on the Sixth Committee to discuss these draft guidelines earnestly. Turning to “Other decisions and conclusions of the Commission”, she welcomed the inclusion of the topic pertaining to auxiliary measures for determining international‑law standards, which could provide a useful contribution to the progressive development and codification of international law.
On the Commission’s working methods, she welcomed efforts that allowed the seventy‑second session to be held in a hybrid format that accommodated members across time zones. She expressed hope, however, that these extraordinary working methods are not necessary in 2022 as in‑person meetings are preferable. Member States must work to ensure greater cooperation between the Sixth Committee and the Commission, she added, suggesting that the Committee follow standardized procedures when considering the Commission’s products.
SUSANA VAZ PATTO (Portugal), commenting on “Other decisions and conclusions of the Commission”, said the Commission succeeded in delivering on its programme of work, mitigating delays and making remarkable progress, despite the challenges posed by the COVID‑19 pandemic. Expressing support for the recommendation to include in its long‑term programme of work the topic “Subsidiary Means for the Determination of Rules of International Law”, she said sub‑paragraph (d) of article 38, paragraph 1 of the Statute of the International Court of Justice remains largely unaddressed by the Commission. She welcomed further clarification regarding the role of judicial decisions and teachings in the determining of existing rules of international law, noting that a comprehensive study of such subsidiary means would actively contribute to the codification and progressive development of international law. “Furthermore, it could provide a useful panacea to certain negative consequences of the fragmentation of international law,” she said.
Turning to “Protection of atmosphere”, she commended the Commission’s successful drafting of guidelines that reflect a balanced and positive approach to the topic. Recalling her delegation’s previous calls for a legal analysis by the Commission that addresses the issue from a “cause and effect” perspective, she welcomed that the preambular paragraphs of the draft guidelines acknowledge the essential role of the atmosphere in protecting and sustaining life on our planet. Supporting the doctrine recognizing that a human right to environment, as encompassing a sustainable atmosphere, is becoming a staple in international human rights law, she stressed that such a right must correspond to clear and enforceable State obligations on preventing, reducing and controlling atmospheric degradation, and praised the clear statement of such obligations in draft guideline 3.
On the “Provisional application of treaties”, she welcomed the contribution of the Special Rapporteur and the related guide. States, international organizations and other users now have at their disposal a “one‑stop document” that reflects existing rules of international law in light of contemporary practice and addresses topical questions on the matter. Emphasizing the voluntary nature of the provisional application mechanism, she said guideline 7 leaves open the possibility of States or international organizations submitting reservations to the provisional application of a treaty or a part of a treaty, including for the purpose of opting out from its legal effects. She also gladly noted that guideline 3 does not refer to “negotiating States” or organizations, as such language is not correct.