Sixth Committee Tackle Treaties’ Provisional Application, Balancing International Obligations, National Law, as International Law Commission Review Continues
Delegates Argue over Perimeters of Guidelines on Protecting Atmosphere
As the Sixth Committee (Legal) continued its consideration of the first cluster of topics from the International Law Commission’s report today, delegates, tackling “Provisional application of treaties,” highlighted the complex process of incorporating international treaty obligations into national law in the uncertain context of applying such instruments provisionally. (For background, see Press Release GA/L/3643.)
The representative of India pointed out that, in a dualist legal system like that of her country’s, treaties must be incorporated into domestic law to become effective. In certain States, such law only allows provisional application of a treaty if national law already conforms with that instrument or is brought into conformity with it. As a rule, treaties should be applied after their entry into force, with provisional application an exception to be applied at the discretion of States, she stressed.
Germany’s delegate, also noting his country’s dualist legal system, said he supported the possibility of applying treaties provisionally, as this helps build confidence between the contracting parties, creates an incentive to ratify the treaty and enables parties to take preparatory measures. However, the interaction of international and domestic law in this area must be clarified, he said, calling on the International Law Commission to offer additional guidance on the provisional application of mixed agreements, as practice shows that free-trade agreements tend to be applied provisionally.
The representative of Brazil said that his country’s Constitutional system requires Parliamentary approval of treaties that create binding obligations for Brazil. When the National Congress approved the Vienna Convention on the Law of Treaties, it objected to the article pertaining to provisional application, and ratified the Convention with reservation to that article. Therefore, the Commission’s guidelines — which state that provisional application produces a legally binding obligation to apply the treaty — are not applicable to Brazil.
Viet Nam’s delegate, while noting that the Vienna Convention provides the general rule of international law concerning the provisional application of treaties, pointed to a lack of detailed guidance as to the law and State practice. The Commission’s guidelines help address certain practical challenges in this area, but she emphasized that the agreement of States and international organizations must always be secured in order to apply a treaty provisionally.
The representative of the Czech Republic welcomed the guidelines’ further clarification of the Vienna Convention’s article relating to provisional application of treaties. This contributes significantly to strengthening certainty and stability in legal relations. He joined other speakers in requesting the Secretary-General to prepare a volume of the United Nations Legislative Series that compiles State practice pertaining to the provisional application of treaties.
During the meeting, delegates also considered the Commission’s work on “Protection of the atmosphere,” with speakers both highlighting the urgency of taking action on this topic and contemplating the draft guidelines’ status in this relatively nascent field of international law.
China’s representative pointed out that, during the Commission’s study on the issue, many States noted that parts of the draft guidelines may exceed existing law and create grounds for misunderstanding. Protection of the atmosphere is still a new topic in international law, and the relevant rules are still developing. While the international community has yet to reach consensus in this area, China is ready to continue studying this topic, he said.
The representative of Israel welcomed the draft guidelines but expressed concern over binding language and its potential effect on future political negotiations concerning protecting the atmosphere. The draft guidelines’ current wording does not properly reflect the product’s non-binding nature. She also questioned whether the creation of another mechanism to address issues of compliance and dispute settlement would constitute unnecessary duplication and lead to undesirable fragmentation.
However, Ecuador’s delegate said that the draft guidelines are a useful legal regimen for international cooperation on this matter as they oblige States to protect the atmosphere in accordance with the rules of international law. He called on the Commission to work aggressively to ensure that international law is in sync with progressive knowledge and the dynamic new realities faced by the international community.
Also speaking were representatives of the United States, Italy, Romania, El Salvador, Slovakia, Mexico, Chile, Switzerland, Croatia, Hungary, Japan and Slovenia.
The Sixth Committee will next meet at 10 a.m. on Wednesday, 27 October, to continue its consideration of topics in Cluster I from the report of the International Law Commission.
Statements on Cluster I
GENG SHUANG (China) said that the International Law Commission should play its role in upholding the international order by working to strengthen the rule of law. To this end, he called on the Commission to enhance its communication with Member States to ensure that its products reflect general State practice. Further, the Commission should carefully select the legal topics to be considered, codified and developed, according to the actual needs of the international community and requests from Member States. The Commission’s output must reflect the diversity of the world and its legal traditions, and look for the “greatest common denominator” to ensure widespread acceptance.
On the topic “Protection of the atmosphere,” he noted that, during the Commission’s study, many States pointed out that some elements of the draft guidelines pertaining to this subject may exceed existing laws and create grounds for misunderstanding. Protection of the atmosphere is still a relatively new topic in international law and the relevant rules are still developing; the international community has yet to reach consensus in this area. China is ready to continue to study this topic, he said.
Turning to “Provisional application of treaties,” he welcomed that the Commission’s draft guidelines on this topic partially reflect the comments and views of various countries. He said that the Commission’s work on this topic can provide a reference for practice in the relevant fields. However, he stressed that the provisional application of treaties must be predicated on the consent of countries. Future interpretation of the draft guidelines should also proceed on that basis, he added.
Regarding “Other decisions and conclusions of the Commission,” he acknowledged the inclusion of “Subsidiary means for the determination of rules of international law” in the Commission’s long-term programme of work, and expressed hope that the Commission researches a wide range of State practice in an inclusive, balanced manner to ensure rational, scientific conclusions.
RICHARD VISEK (United States) said that, in regards to the “Provisional application of treaties,” he supported the guidelines and said he appreciated the consideration of his country’s comments on “consent to provisional application”. However, reiterating previous observations, he said that the commentary to the guideline has identified little support in State practice for the use of declarations to establish the provisional application of treaties. The commentary describes such declarations as an “exceptional possibility,” underscoring the ambiguity of State practice on this point. The Guide similarly lacks support in State practice in other areas, he said, pointing to guideline 7.
On “Protection of the atmosphere,” he said he remained concerned about the draft guidelines and their accompanying commentaries, which have the potential to inhibit progress in international environmental law by creating confusion about its content, including through statements suggestive of new and unfounded international legal obligations. To this end, he drew attention to several draft guidelines that contain a reference to the State’s obligation, noting that guidelines are policy recommendations and, as such, should not be a part of the International Law Commission’s work. Turning to the Commission’s elections, he pointed to the gender imbalance, noting that this year presents an opportunity to move its membership “a little closer to reflecting the global community”.
KAJAL BHAT (India), on “Protection of the atmosphere”, said that, as a natural resource, the atmosphere was long considered to be non-exhaustible and non-exclusive, since it was assumed that everyone could benefit from it without depriving others. This view no longer holds good. The atmosphere is a limited resource with limited assimilation capacity and a medium through which transport and dispersion of polluting and degrading substances occur. An in‑depth study is required to determine the relevant and common factors between the protection of the atmosphere and other fields of international law. Established treaty regimes and their core objectives must be respected. There is no denying that the atmosphere is a common resource which all States have a duty to protect for present and future generations, and, more significantly, for the developing, less developed and especially the island states that face the risk due to continuing sea rise.
On the “Provisional application of treaties”, she said that it is a mechanism that allows States to give legal effect to a treaty by applying its provisions to certain acts, events and situations before it has entered into force. In a dualist legal system like in India, where treaties must be incorporated into national law to become effective, it is a typical requirement of domestic law of certain States that the competent organ may only agree to provisional application of a treaty if national law is already in conformity with the treaty or is brought into conformity with it. Treaties should, as a rule, be applied after their entry into force, with provisional application before entry into force being an exception to be applied at the discretion of States. Provisional application of treaties should be voluntary, not a legal obligation that would require States to opt out of or to express their reservations to, she said.
STEFANO ZANINI (Italy), regarding the “Protection of the atmosphere”, welcomed the use of the expression “common concern of humankind” in the third preambular paragraph of the draft guidelines and noted that it was the legal expression mostly accepted in multilateral environmental instruments. He also expressed support for the formulation of draft guideline 10, which is framed in terms of due diligence, leaving discretion to the State as to the means adopted to implement international legal obligations related to the protection of the atmosphere.
Turning to the topic of “Provisional application of treaties”, he noted his country’s Constitution regulates in detail the entry into force of international treaties at the domestic level. In that regard, he highlighted the importance of the Commission’s reassurance that it in no way claims that the guide creates any kind of presumption in favor of resorting to the provisional application of treaties.
As for “Other decisions and conclusions of the Commission” topic and regarding the promotion of the rule of law at the national and international levels, he expressed appreciation of the role of the Commission in advancing the principle in international relations. In addition, while the Commission faced serious challenges including time differences and reduced hours of operation, the quality of the report and of the work it accomplished testifies to its importance in continuing to perform its crucial function, he said.
GEORGE RODRIGO BANDEIRA GALINDO (Brazil), commending the extraordinary efforts made to ensure the success of the seventy-second session this year, said that the Commission once again showed that it can adapt to a changing world, while maintaining the high quality of its work. He added that he hoped working methods would continue to be updated, with a focus on the Commission’s relationship with the Sixth Committee. A fluid and constructive relationship between them tends to generate products that are relevant to the international community on both its content and its effectiveness.
Turning to “Protection of the atmosphere”, he said that the draft guidelines were a good starting point for discussion. However, guidelines 10, 11 and 12 - regarding implementation, compliance and dispute settlement ‑ may require further examination. It is also important to ensure consistency between guideline 2 and the 1992 Rio Declaration on Environment and Development, including the precautionary approach.
In regard to the “Provisional application of treaties”, he noted that the general commentary to the guide stresses that provisional application constitutes a completely voluntary mechanism, which States are free to resort to or not. His country does not join this practice. According to guideline 6, the provisional application of a treaty produces a legally binding obligation to apply the treaty; a breach of this obligation entails international responsibility, in accordance with article 8. However, the Brazilian Constitutional system requires Parliamentary approval of treaties that create binding obligations to Brazil. When the National Congress approved the Vienna Convention on the Law of Treaties, it objected to article 25, related to provisional application. Brazil ratified the Vienna Convention with reservation to this article. Therefore, the guide adopted by the Commission, including its guideline 10, related to the internal law of states, is not applicable to Brazil.
On “Other decisions and conclusions of the Commission”, he spotlighted “Subsidiary means for the determination of rules of international law”, adding his hope that work on the topic will enhance the clarity and predictability of international law, while also including the contributions of all regions of the world to its development. He also said that he favours the Commission adding “Extraterritorial jurisdiction” onto its agenda.
ALINA OROSAN (Romania), noting that two topics had been removed from its agenda, asked about whether the Commission intends to address other topics as part of its programme of work. To that end, she expressed her interest in the Commission examining the legal regime relevant to the prevention and repression of piracy armed robbery at sea, as well as a deeper study of the principle of universal criminal jurisdiction.
Turning to “Protection of the atmosphere”, she underlined the progressive character of the principles, which emphasize human rights protection and intergenerational equity; the topic is linked to the oceans and the law of the sea. Therefore, the draft guidelines concern both the transboundary and global contexts. With transboundary atmospheric pollution, while the obligation of States to prevent adverse effects is established as customary international law, the existence of such an obligation for global atmospheric degradation remains undecided. Further, given that such adverse effects are largely caused by the activities of individuals and private industries, States are required through due diligence to ensure such activities do not cause adverse effects, she said.
Regarding the “Provisional application of treaties”, she welcomed the adoption of the guide, and noted the usefulness of separating paragraph (b) of guideline 4 into a chapeau and two subparagraphs, as well as the explanation in the commentaries concerning the broader interpretation of the term “intergovernmental conference”. Further, she said she supported the decision to excise the phrase “as if the treaty were in force” from guideline 6, given the diverging views on the issue. She also welcomed the amendment of guideline 9 to take into account other grounds for termination of provisional application aside from the intention to not become a party to the treaty.
On “Other decisions and conclusions of the Commission”, noting the Commission’s decision to include in its long‑term programme of work the topic “Subsidiary means for the determination of rules of international law”, she said such an analysis, while having its merits, need not be prioritized over other topics.
LIGIA LORENA FLORES SOTO (El Salvador), focusing on “Protection of the atmosphere” and acknowledging the progress achieved by the Commission in progressive development and codification of international law, underscored that the pollution and degradation of the atmosphere is a universal problem. Noting that article 117 of her country’s Constitution obliges the State to protect natural resources and the environment, she said that El Salvador is interested in harmonizing its domestic laws with international protocols and obligations. The draft guidelines on “Protection of the atmosphere” could be seen as complementary to other normative instruments, she said, noting that they emphasize scientific and technical cooperation.
On the “Provisional application of treaties,” she said it is crucial to strengthen the interpretation and application of the Guide, especially for countries such as hers. Drawing attention to the wording of draft guideline 3, she said it would be useful to clarify the normative connection between the provisions mentioned in the sentence. Further, when draft guideline 4 refers to other means or arrangements, it would be good to explicitly state what the role of the depository would be, she said.
PETER KLANDUCH (Slovakia) commended the Commission’s work, calling it a remarkable achievement in light of the disruption caused by the COVID‑19 pandemic and the hybrid format employed at the session. The Commission, with the indispensable and invaluable support of the Codification Division, demonstrated the necessary degree of flexibility and adaptability, crucial for fulfilling its mandate in the field of codification and progressive development of international law even under challenging circumstances.
Turning to the "Provisional application of treaties”, he said that while agreed that an act adopted by an international organization or international conference may envisage such an application, it must be clear that such a stipulation is subject to the consent of the State concerned. He also pointed out that the decision of a State to terminate the provisional application of a treaty does not imply the notification by the same State of its intention not to become a party to the treaty.
As for the topic of the “Protection of the atmosphere”, he said that it is an issue not well suited for the Commission’s consideration, recalling his delegation’s concerns about the general approach towards this topic. The approach is highly abstract, simply restating often very rudimentary general rules or principles of international law that are not specifically applicable for the area of protection of the atmosphere. Among other things, he said that elaboration on some difficult questions, all of which have been excluded from the material scope of the guidelines, in line with guideline 2 (2), may have provided some added value.
He went on to say that the inclusion of “Subsidiary Means for the Determination of Rules of International Law” in the long‑term programme of the Commission’s work should come only after the consideration of “General Principles of Law” is concluded, given the complexity of the subject and the Commission’s workload. A streamlined agenda would enable a more profound exchange between the Commission and the Member States.
PABLO ADRIÁN ARROCHA OLABUENAGA (Mexico) said that, in regard to “Protection of the atmosphere,” the guidelines will serve to direct discussions and adoption of measures at the national, regional and international levels; that will, in turn, ensure greater and sustainable protection of the atmosphere. Mexico, belonging to the civil law legal tradition, favours and promotes a system of international law based on clear rules created from the will of the States, he stressed.
Turning to the “Provisional application of treaties,” he said that the Guide is a very useful tool for both States and international organizations in clarifying the scope and legal consequences of the provisional application of treaties. However, he said he would have preferred that the Commission adopted a set of model clauses to serve as a point of reference for States in their treaty negotiations, as was originally proposed by the Special Rapporteur. He expressed his hope that the examples serve as illustrative, both in terms of their successes and shortcomings in their drafting. The issue of the provisional application of treaties is closely linked to the expression of the will of the States involved in the negotiation, signature, and ratification of international instruments, he said.
He then went on to say that since the Commission has concluded two items on its agenda, it would be pertinent to incorporate into its current programme of work the issue of “universal jurisdiction,” which is already on its long-term programme of work. This will be very useful in informing the deliberations of the Sixth Committee and will prevent the topic from being frozen and neglected in the long-term programme of work, as has been the case with many other topics that have been on the agenda for decades and have fallen into oblivion, he stated
MEITAL NIR-TAL (Israel) welcomed the draft guidelines on the “Protection of the atmosphere,” noting that a number of concerns raised by her Government were not adequately addressed in the final iteration of the draft guidelines, namely in draft guideline 11 regarding compliance, and draft guideline 12 on dispute settlement. Noting that alternative legal frameworks relating to the protection of the atmosphere already exist, she asked whether the creation of yet another mechanism that addresses the issues of compliance and dispute settlement would not constitute an unnecessary duplication, and lead to undesirable fragmentation. She also expressed concern with the binding language in several of the draft guidelines and its potential effect on political negotiations regarding the protection of the atmosphere. In that regard, she stressed that the draft guidelines’ current wording does not properly reflect the product’s non-binding nature.
Mr. DEVILLAINE GOMEZ (Chile) emphasized the importance of work on “Protection of the atmosphere”, as this shared “life-giving space” must be protected for present and future generations. The envelope of gases surrounding the Earth is degrading, temperatures are increasing, glaciers are retreating and the quality of life for many people is being compromised. Against this backdrop, he stressed the urgent need for States to cooperate to protect the atmosphere in two dimensions — namely, pollution and degradation — and to increase scientific and technical knowledge to address such degradation before it becomes irreversible. He also welcomed the draft guidelines’ emphasis on how international-law norms for protecting the atmosphere must be linked with those in areas such as commerce, the Law of the Sea and human rights. Chile is committed to working on this relevant matter, which constitutes an increasingly well-defined moral and legal imperative, he said.
On the “Provisional application of treaties,” he stressed that in no case should such provisional application be understood as a disincentive to the full validity of a treaty, or as a way of avoiding internal requirements for treaty approval. The Commission’s work in this area does not represent a framework of binding norms; rather, it is an instrument to guide States and international organizations regarding practice in this area and a departure from an excessively prescriptive approach to the same. Addressing many of the draft guidelines in turn, he said that provisional application can be established through a resolution, decision or other method, adopted by an international organization or at a diplomatic conference. It must be clearly established, however, that such methods do not have the same character as agreements between States when deciding on provisional application. He also said that the provisional application of treaties does not affect the relative legal value of the norms subject to said application.
NATHALIE SCHNEIDER RITTENER (Switzerland), in regards to the “Provisional application of treaties,” she pointed to the Guide, noting that while the provisional application of treaties can be useful, it poses a particular challenge when the treaty is to be submitted to a State's legislature for approval. On a national platform, three conditions must be met for the Swiss Government to consent to the provisional application of treaties requiring Parliament approval: first, essential national interests must be at stake; second, there must be a particular urgency; and third, the relevant Parliamentary committees must be consulted and not oppose the provisional application. It should also be noted that this procedure is subject to a predetermined time frame. If the Government has not submitted the treaty to Parliament for approval within six months of the start of the provisional application, it expires. Guideline number 10 in the International Law Commission's Guide, emphasizes that provisions of domestic law cannot be invoked to justify a breach of a provisionally applied treaty. This guideline, like the others, helps to provide legal certainty in international relations. It sets out clear rules and is thus a very useful supplement to the succinct provision contained in article 25 of the Vienna Convention on the Law of Treaties, she said.
GORDANA VIDOVIĆ MESAREK (Croatia), first addressing the “Provisional application of treaties”, welcomed the adoption in the second reading of the Guide, the annex and the commentaries to it, as well as the Commission’s decision to submit those to the General Assembly for its widest possible dissemination.
On “Succession of States in respect of State responsibility”, she recalled that Croatia suffered the effects of a range of serious crimes in the 1990s during and after the dissolution of its predecessor State. Agreeing with the need to preserve consistency with the Commission’s previous work on the responsibility of States for internationally wrongful acts, she said neither the “clean slate” rule nor automatic succession can be accepted as general rules. She suggested that future work should take into account situations in which part or parts of the predecessor State that become successor States could bear responsibility for international wrongful acts committed not only against third States, but also against other successor States.
Turning to the topic “General principles of law”, she said she agrees with the general assessment that controversies over the general rules formed within the international legal system are still left unresolved and that additional efforts must be invested to further examine, elaborate and clarify remaining issues. She also voiced support for future work on that topic to deal with functions of general principles of law and their relationship with other sources of international law on this topic. There should be a clear distinction between general principles of law and other sources of international law, especially in relation to customary law, which is not the case now.
On the matter of “Sea‑level rise in relation to international law”, she welcomed the Commission’s work on the fast‑growing risk, while noting that for the purpose of clarity and consistency, sources of law ‑ listed in paragraph 294 of the report - should be in line, including in the sense of terminology, with article 38 of the Statute of the International Court of Justice. However, she expressed doubts and reservations on the possibility of including geographical charts on the list of sources of law. She noted that her delegation will continue to follow future discussions and deliberations on the issue of sea‑level rise, which would benefit from the findings and results of the work that the International Law Association Committee on International Law and Sea Level Rise made so far.
RITA SILEK (Hungary), pointing out that it was only a few weeks away from the election of new members to the Commission, drew attention to the importance of improving the gender balance. She urged Member States to nominate and elect more female candidates to the Commission, towards the goal of achieving better gender parity. To that end, her country was presenting a female candidate, Réka Varga, at this year’s election.
Turning to “Protection of the atmosphere,” she noted that protecting the environment and adapting to climate change is a priority of Hungary. Commending the adoption of the Guidelines on the Protection of the Atmosphere, she said that its pioneering approach well reflects the complexity of the issues at hand and addresses important questions, such as the need for international cooperation and systematic approach in respect of legal documents. Highlighting the fact that Hungary was one of the first countries to ratify the Kigali Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer, she emphasized that her country was the seventh country which codified in law the objective of reaching climate neutrality on the national level by 2050. The path towards net zero greenhouse gas emissions has been set out in the National Clean Development Strategy, adopted this September.
CHRISTOPHER EICK (Germany), addressing “Protection of the atmosphere”, said transboundary air pollution, ozone depletion and changes in atmospheric conditions leading to climate change are pressing global concerns. Referring to draft guideline 3, he said he considered the obligation to protect the atmosphere as an obligation erga omnes, believing that this obligation is owed to the international community as a whole. In certain cases, peaceful uses of nuclear energy might lead to significant deleterious effects, he said, endangering human health and the natural environment and falling under the definition of atmospheric pollution in draft guideline 1(b). However, the phrase that “the reference to radioactivity as energy is without prejudice to peaceful uses of nuclear energy in relation to climate change in particular” should not be interpreted as treating the peaceful use of nuclear energy differently from other peaceful activities that can lead to atmospheric pollution.
Turning to “Provisional application of treaties”, he noted in regards to guideline 2, the decision on the scope and conditions is left with contracting parties. In a dualist legal system like Germany’s, where treaties must be incorporated into national law to become effective, the competent organ may only agree to provisional application of a treaty if national law already conforms with the treaty. He said he supported the possibility of applying treaties provisionally; this helps build confidence between contracting parties, creates an incentive to ratify the treaty and enables parties to take preparatory measures. However, it is important to clarify, through treaty practice and jurisprudence, the interaction of international and domestic law. The Commission should offer additional guidance on the provisional application of mixed agreements, as practice shows that free trade agreements tend to be applied provisionally. Even if a State cannot invoke the provisions of its domestic law to justify its failure to meet its obligations, conflicts may arise and affect confidence between the contracting parties, he warned, adding that the treaty type of mixed agreements is likely to change the residual character of article 25 of the 1969 Vienna Convention on the Law of Treaties.
He also added his support for the inclusion of the topic "Subsidiary means of determining the rules of international law" in the Commission's work programme.
Ms. ISHIBASHI (Japan), noting concerns expressed about the Commission’s heavy workload, voiced her expectation that the body will thoroughly study the topics currently under consideration and avoid making premature decisions, including on adopting new topics for its programme of work. She also welcomed the start of the Commission’s consideration of the topic “Sea‑level rise in relation to international law”.
On the item “Protection of the atmosphere”, she welcomed the adoption of a draft preamble and guidelines, as well as the Commission’s extensive discussion on the “2013 understanding”, which served as a condition and a guiding principle for its consideration of the topic. Going forward, the Commission should carefully consider if it is appropriate to set a strict condition on a topic when the Commission decides to include that topic in its programme of work. She also said she supported the Commission’s recommendation to ensure the widest possible dissemination of the draft preamble and guidelines and bring them to the attention of States, international organizations and all others who may be called upon to deal with the subject.
MARTIN SMOLEK (Czech Republic), focusing on “Protection of the Atmosphere,” welcomed the changes to the Guide, including the preamble and several guidelines made during the second reading. However, the guidelines do not offer specific guidance to the States other than those they can find in already existing instruments dealing with problems of air pollution, climate change or environment protection in general. The real challenge is to find a science-based political compromise on the divergent issues of economic, social, and political nature. He also noted that guideline 9 touches upon several substantively different issues, while proposing an oversimplified solution to them. It seems to be “fictitious and inconsistent with the conclusions on identification of customary international law adopted by the Commission in 2018,” he said.
Turning to the “Provisional Application of Treaties”, he said the guidelines and commentaries in the Guide address the most pertinent issues of the provisional application of treaties. Among other comments in his overview of the guidelines, he welcomed that guideline 9, on the termination of the provisional application, included further clarification in addition to restating elements of article 25 of the 1969 Vienna Convention on the Law of Treaties. This provision contributes significantly to the strengthening of legal certainty and stability of legal relations. The Guide also contributes to further consolidation and unification of the practice in this field. To that end, he suggested requesting the Secretary-General to prepare a volume of the United Nations Legislative Series, compiling State practice in the provisional application of treaties.
On “Other decisions and conclusions of the Commission,” he noted the inclusion of “Subsidiary means for determination of rules of international law” in the long-term programme of work. He underlined that moving any of the topics from the already existing long-term programme list onto the active programme should be done only after careful consideration and proper explanation as to why the Commission has given preference to a particular topic over other topics. In discussions in the Sixth Committee, the Czech Republic delegation repeatedly proposed to refer the topic “Universal criminal jurisdiction” to the International Law Commission. Several years ago, the Commission included the topic in its long-term programme of work. Universal criminal jurisdiction is a subject of intense discussions, is relevant for State practice and meets the criteria for the selection of topics of the Commission. Therefore, he voiced his support for its inclusion on the active programme of the Commission.
CRISTIAN ESPINOSA CAÑIZARES (Ecuador), acknowledging the indispensable role of the Commission, said it must work aggressively to ensure that international law is in sync with progressive knowledge and the dynamic new realities faced by the international community.
On “Protection of the atmosphere,” he said, the guidelines are a useful legal regimen for international cooperation on that matter. Noting that the guidelines oblige the States to protect the atmosphere in accordance with the rules of international law, he also pointed out that those texts stress that activities that are aimed at deliberately changing the atmosphere should be carried out with caution.
Turning to the “Provisional application of treaties,” he voiced support for the Committee’s request to the Secretary-General to prepare a volume of the United Nations Legislative Series, compiling the practice of States and international organizations in the provisional application of treaties.
Commending the Commission for its work on other topics, he looked forward to its work on methods for identifying general principles of law. He also expressed satisfaction with the Commission’s decision to include in its long-terms programme of work, the topic of “Subsidiary means for the determination of rules of international law”.
QUYEN THI HONG NGUYEN (Viet Nam), addressing the topic of “Protection of the atmosphere,” expressed regret that the Guide excluded from its scope of application the question of transfer of funds and technology, including intellectual properties, to developing countries. Such action is without a reasonable basis, which risks rendering the guidelines incomplete and a setback from contemporary international environmental law, she stressed. Noting that guideline 11, paragraph 2, subparagraph (a) provides for “facilitative procedures” by providing “assistance” to the States concerned, in case of “non-compliance,” she emphasized that assistance would be most effective if it aims at enhancing the capacity of the States to comply with their obligations in the first place, therefore preventing atmospheric pollution, degradation and other damages, while pointing out the non-binding nature of the Guidelines.
Turning to the “Provisional application of treaties,” she pointed that there has not been detailed guidance as to the law and State practice regarding provisional application of treaties, although article 25 of the Vienna Convention on the Law of Treaties provides the general rule of international law in this respect. The guidelines helps to address certain practical challenges in the provisional application of treaties by States, and it allows for certain or some provisions of a treaty to have immediate effect, prior to the completion of internal procedures or international requirements for its entry into force. However, she also emphasized that the agreement and/or acceptance of States and international organizations to apply a treaty provisionally must always be secured.
MARKO RAKOVEC (Slovenia), commenting on “Protection of the atmosphere”, said the present topic is a reflection of a number of modern human factors that contribute to reducing the quality of life. New issues of modern law are arising. It is necessary to be aware that the atmospheric pollution and atmospheric degradation that are happening now, at this moment, will not go away tomorrow. He added his support for the Commission’s draft guidelines on the protection of the atmosphere, given the topic’s importance and the well‑being of future generations.
Regarding the “Provisional application of treaties”, he welcomed the guide’s clarification of the mechanism’s legal effect and the Commission’s acknowledgement of the mechanism’s flexible nature. However, the guide fails to address the relationship between “provisional application” and “provisional entry into force”, nor does it explain the interaction between the provisional application from article 25 and the so‑called interim obligation from article 18 of the Vienna Convention on the Law of Treaties.
Turning to “Other decisions and conclusions of the Commission”, he highlighted the Commission’s engagement in environmental law, adding that it also looks into the principle of universal jurisdiction. Further steps should be taken to improve gender parity in the Commission, which only has a total of seven women members. At the elections this year, only eight female candidates were nominated, a record number. Unfortunately, that still only amounts to approximately 16 per cent of the nominations. Countries should strive to nominate more female candidates. However, he also pointed out that the ratio between the number of current female members and the results of their work was stunning. Two of the four female members of the Commission are Special Rapporteurs and the other two are co‑chairs of a study group. Furthermore, the chair of the drafting committee of the seventy‑second session was a woman.