As Legal Committee Begins Review of International Law Commission’s Annual Report, Speakers Tackle ‘Protection of Atmosphere’, ‘Most-Favoured-Nation Clause’

Opening discussion today on the broad array of issues deliberated upon by the International Law Commission in its sixty-seventh session, the Sixth Committee (Legal) began with the first cluster of topics, debating the Commission’s approach to “Protection of the atmosphere” and its conclusions on the “Most-Favoured-Nation clause”, of which it had completed consideration.

Introducing the annual report, Narinder Singh, Chairman of the International Law Commission, said that, “despite the tragedies that surround us in the world, the pain and anguish that are so vivid in the daily lives of so many”, international law was endowed with what the Commission’s first Chairman, Manley O. Hudson, had called “moral appeal”.  That might explain the continuing influence international law had as the language of global relations.  Indeed, he called the progressive development and codification of international law “one of the signature achievements of the United Nations” over the last 70 years.

Giving an overview of the report’s introductory chapters and the first cluster of issues before the Sixth Committee, Mr. Singh highlighted the Commission’s completion of its work on the “Most-Favoured-Nations clause” and noted progress on some of the newer topics on its programme of work, including its newest addition, “Jus cogens”.

With the conclusion of work on the “Most-Favoured-Nation clause”, he noted that the 1978 draft articles continued to be the basis of the clauses’ interpretation.  However, on whether most-favoured-nation clauses encompassed dispute settlement provisions, he noted the report’s conclusion that that was up to the States party to the negotiations, who could include specific language or leave the matter to interpretation by dispute settlement tribunals on a case‑by‑case basis.

On “Protection of the atmosphere”, the other substantive matter, he said that the Commission had sought to provide guidelines that might assist the international community in addressing critical questions relating to transboundary and global protection of the atmosphere.  To that end, it had provisionally adopted four preambular paragraphs and several draft guidelines.

On that score, the representative of the Czech Republic was unconvinced of the necessity of the Commission’s exercise.  It was unclear to whom those guidelines should be addressed and which legal problems those guidelines should help to overcome.  The Commission seemed headed towards recalling or restating various general principles already contained in a number of international instruments without properly explaining the purpose of that “repetitive exercise”, he said.

Still, Singapore’s representative pointed out that atmospheric pollution persisted unbound by national jurisdiction and was a multifaceted problem not confined to a single resolute pathway.  International cooperation was at the core of the draft guidelines.  However, it would be useful if the report had distilled the important principles of international cooperation.

Nicaragua’s representative, highlighting changes to the guidelines on the obligation to protect the atmosphere, said the obligation to protect the environment, Mother Earth and the air in which living beings breathed, was a fundamental right, like the right to life itself.  In effect, it was a jus cogens obligation, he pointed out, expressing the hope that the study of jus cogens would have a better fate than that of protection of the atmosphere.

Along those lines, while jus cogens was not part of the first cluster, the speaker from Slovenia welcomed debate on that topic.  It reflected common values and was the foundation of the modern international order.  She suggested that a complete analysis of the categories of relevant norms would be welcome, including the possibility that some principles, such as those in the Charter, might attain the level of jus cogens.

The focus of many speakers who addressed the “Most-Favoured-Nation clause” was on their application to investment treaties and dispute settlement.  Austria’s representative said the Commission’s clarification of the implications of the most-favoured-nation clause, in particular in international trade and investment treaties, was a valuable contribution to public international law.  The central, controversial question as to what extent those clauses encompassed dispute settlement provisions could be most appropriately solved by explicit language in the relevant treaties.

However, Netherland’s representative did not agree, emphasizing that, as no general rules on the interpretation and application of those clauses existed, they should be interpreted individually.  Still, the ejusdem generis principle was of great importance and the treatment to be claimed on the basis of a most‑favoured‑nation clause must be determined on a case-by-case basis.

During the debate, Peru’s representative echoed other delegations and called attention to the relationship between the Commission and the Sixth Committee, which he described as a “cause of constant concern”.  To address the issue of limited participation of Member States in the Commission’s work, his country, along with others, had undertaken an initiative to hold informal meetings during the year among representatives in the Committee and members of the Commission who were in New York.

Also speaking today were representatives of Ecuador (for the Community of Latin American and Caribbean States), Finland (also for Denmark, Iceland, Norway and Sweden), Italy, Belarus and Romania.

The Sixth Committee would next meet Tuesday, 3 November, at 10 a.m., to continue consideration of the first cluster of topics from the report of the International Law Commission.

Background

The Sixth Committee (Legal) would commence today deliberations on the Report of the International Law Commission (document A/70/10) on the work of its sixty‑seventh session.  The report would be considered in three “clusters”.

For the first cluster of issues, the Committee had before it Chapters I‑III, XII, IV and V of the report.  For the second cluster, the Committee would take up Chapters VI, VII and VIII, while the third and final cluster would see debate on Chapters IX, X and XI.

Introduction of Report

NARINDER SINGH, Chairman of the International Law Commission, said that, “despite the tragedies that surround us in the world, the pain and anguish that are so vivid in the daily lives of so many”, international law was endowed with what the Commission’s first Chairman, Manley O. Hudson, had called “moral appeal”.  That might be what had led to international law’s continuing influence as the language of global relations.  Thus, the Commission would continue to assist the General Assembly in carrying out its studies in the progressive development and codification of international law, which he called “one of the signature achievements of the United Nations” over the last 70 years.

Presenting the introductory chapters and the first cluster of issues to be considered by the Sixth Committee, he highlighted the Commission’s completion of its work on the “Most-Favoured-Nations clause”.  Progress had also been made on a number of other topics, including “Identification of customary international law” and “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, which were nearing completion.  In addition, he noted that some progress had been made on the topic of “Crimes against humanity”, which had only been included in the programme of work in 2014, and that the topic “Jus cogens” had been included in 2015.

He said substantive consideration had also continued on “Protection of the atmosphere”, “Protection of the environment in relation to armed conflicts”, “Immunity of State officials from foreign criminal jurisdiction” and “Provisional application of treaties”.  In that light, he drew attention to past requests for information from Governments on their practice with respect to a number of ongoing topics.  He further requested information relating to their practice on the nature of jus cogens, the criteria for its formation and the consequences flowing from its use as expressed in official statements and decisions of national and regional courts and tribunals, including quasi-judicial bodies.

He also invited comments on the draft articles on the “Protection of persons in the event of disasters”, on which the Commission had completed its first reading in 2014.  Stressing the importance of the Commission’s interactions with other international bodies, he noted its continuing exchanges with the International Court of Justice and the first-ever visit to the Commission by the United Nations High Commissioner for Human Rights.  As well, the Commission’s interaction with the Sixth Committee and with Governments was crucial.

Turning to the Commission’s consideration of the “Most-Favoured-Nation clause”, he detailed the substance of the final report on the matter (contained in the annex to the Commission’s report), which, among other things, set out a framework for the proper application of the principles of treaty interpretation to such clauses and surveyed approaches in the case-law to the interpretation of most-favoured-nation provisions in investment agreements.

While the core provisions of the 1978 draft articles continued to be the basis for the interpretation and application of such clauses, he continued, the 1969 Vienna Convention on the Law of Treaties was a relevant point of departure in the interpretation of investment treaties.  As to whether most-favoured-nation clauses encompassed dispute settlement provisions, the report concluded that that was up to the States negotiating them.  Explicit language could be included to ensure that most-favoured-nation provisions did or did not apply to dispute settlement.  Otherwise, the matter would be left to interpretation by dispute settlement tribunals on a case-by-case basis.

He then turned to the last substantive chapter on “Protection of the atmosphere”.  The Commission sought to provide guidelines that might assist the international community in addressing critical questions relating to transboundary and global protection of the atmosphere without interfering with relevant political negotiations or attempting to fill gaps, impose legal rules or principles on exiting treaty regimes.  Thus, the Commission had provisionally adopted four preambular paragraphs and several draft guidelines.

The preamble reflected the Commission’s objective while recognizing that protecting the atmosphere from atmospheric pollution and atmospheric degradation was a pressing concern of the entire international community, he said.  The first of the draft guidelines offered definitions, for the purposes of those guidelines, of the “atmosphere”, “atmospheric pollution” and “atmospheric degradation”.  Draft guideline 2 provided the scope of the drafts and draft guideline 5 dealt with international cooperation on the matter.  To further develop the topic, he reiterated the request for Governments to provide relevant information on domestic legislation and judicial decisions of domestic courts.

Statements on Cluster I

AGUSTÍN FORNELL (Ecuador), speaking for the Community of Latin American and Caribbean States (CELAC), underscored that the objective of the International Law Commission was the promotion and progressive development of international law and its codification, which required Governments to furnish it with information relevant to the topics being studied.  Thus, there was a need to take into account the difficulties faced by many States in providing such information, which was a result of asymmetries in resources among the teams of international lawyers in different countries, and “not by a lack of interest”.  It was extremely important that the international community did its utmost to ensure that all States effectively participated in the discussions of the Commission.  Noting that the Commission continued to hold its sessions in Geneva, he reiterated his call to hold half of the Commission’s sessions at the Organization’s Headquarters in New York in order to facilitate the attendance of more Sixth Committee delegates as observers.

He also welcomed voluntary contributions to the Trust Fund for Participation in the International Law Seminar of the Commission, and invited States to consider making additional contributions.  Participation in the Seminar of legal advisors from all regions could contribute significantly to the work of the Sixth Committee and its interaction with the International Law Commission.  In addition, he reaffirmed the importance of submitting possible comments and observations by 31 January 2016, in particular on the specific issues identified in Chapter III, regarding areas including protection of the atmosphere, identification of customary international law, crimes against humanity, protection of the environment in relation to armed conflicts.  Finally, while commending the establishment of the Commission’s new website, he stressed that the productivity of the Commission must be matched by adequate funding so that documents that were of great relevance to the progressive development and codification of international law had the necessary publicity.

MARJA LEHTO (Finland), speaking also for Denmark, Iceland, Norway and Sweden, said the mandate of the Commission was as relevant as ever.  On the protection of the atmosphere, the development of guidelines could assist the international community in addressing critical questions related to transboundary and global protection of the atmosphere.  However, work on that must not interfere with or duplicate relevant political negotiations, including those on long-range transboundary air pollution, ozone depletion and climate change.

While agreeing with aspects of the language drafted by the Commission, she drew attention to the restriction of the definition of atmospheric pollution in article 1(b) of the draft guidelines to effects extending beyond the State of origin.  In that regard, she questioned whether it was suitable to incorporate the restriction into the definition article.  The matter belonged to the scope of application dealt with in draft guideline 2.

She then turned to the Commission’s Study Group on the “Most‑Favoured‑Nation clause”, stating that the methodical promotion of the identification of the more precise legal content of various most-favoured-nation clauses could contribute to a greater coherence of international law in that field.  The Group had been right in drawing upon the practice and considerations that had emerged from other entities, including the World Trade Organization and the Organisation for Economic Cooperation and Development, and in considering a typology of various sources of case-law, including in particular arbitral awards.

PANG KHANG CHAU (Singapore), stating that the report on the “Most‑Favoured‑Nation clause” was systematic, comprehensive and updated, said he agreed with the framework for the proper application of the principles of treaty interpretation to such clauses.  The report would remain useful not only for practitioners and treaty negotiators, but also as an additional resource in safeguarding against the fragmentation of international law.  That would enable greater coherence in the approaches taken in arbitral decisions on most‑favoured‑nation provisions.

Regarding atmospheric protection, he stressed that international cooperation remained at the core of the draft guidelines.  Atmospheric pollution persisted unbound by national jurisdiction and was a multifaceted problem not confined to a single resolute pathway.  It would be useful, however, if the report had distilled the important principles of international cooperation.  The focus on enhancing scientific knowledge seemed to qualify the obligation to cooperate, but the exchange of information and joint monitoring enumerated in paragraph 2 applied to more than just scientific knowledge.  He said that he looked forward to the Commission’s further elaboration on promoting collaboration in other areas, such as strengthening regulatory institutions and the coordination of international emergency actions and communications.

GUSTAVO MEZA-CUADRA VELÁSQUEZ (Peru), associating himself with CELAC, said the Commission’s decision to include jus cogens in its programme of work would significantly contribute to its work on sources of international law.  Recalling the Sixth Committee’s subtopic on the rule of law at its current session, he welcomed the Commission’s specific observations on the role of multilateral treaty processes in that regard.

Noting that the intensification of the relationship between the Commission and the Committee was a “cause of constant concern” for the General Assembly, he said his country, along with others, had undertaken an initiative to hold informal meetings during the year among representatives in the Committee and members of the Commission who were in New York.  He expressed concern with the financial situation faced by the Commission, which threatened the continuing development of legal publications in all the official languages.

ANDREA TIRITICCO (Italy) said the report of the Study Group on the “Most‑Favoured‑Nation clause” was an important complement to the draft article adopted in 1978 on the same topic.  The latter remained a valuable term of reference, with special regard to the ejusdem generis principle.  It was a guardian for the appropriate interpretations of such clauses in full compliance with the principle of State consent as the main source of treaty rights and duties.

On “protection of the atmosphere”, he said he was pleased that work was proceeding on the understanding that the issue’s scope should be without prejudice to political negotiations under way in related forums, with special regard to those on climate change, ozone depletion and long-range transboundary air pollution.  He also said he was pleased to see the contours of the scope of application of the guidelines as clearly delineated in guideline 2, together with the decision to give further consideration to the bracketed language in paragraph 1.

Regarding a topic from cluster II, “crimes against humanity”, he said he favoured the decision to confine, for the time being, the scope of the draft articles to crimes against humanity.  Most importantly, he expressed satisfaction for the approach clearly undertaken by the Commission to the effect that the draft articles were meant to avoid any conflicts with obligations arising from existing treaties relating to crimes against humanity, including those establishing international or “hybrid” criminal courts, with special regard to the International Criminal Court.

In the same vein, he said he supported the approach anticipated by the Commission whereby not only would the draft articles be without prejudice to the Rome Statute in general, but should also aim to enhance the principle of complementarity under the Statute in addressing inter-State cooperation on the prevention of the crimes in question and on the investigation, arrest, prosecution, extradition and punishment at the domestic level.

ANDREI POPKOV (Belarus) said the report which was underway laid the foundation for further consideration of the most-favoured-nation clause.  While not all of the conclusions on the subject had been complete, they could help States in concluding international investment and improving international arbitration procedures.  The subjects and aims of international investment treaties should not be interpreted to the detriment of the sovereign rights of States to make, among others, specific mechanisms for dispute settlement.  Where most-favoured-nation clauses were vaguely worded, he said it would be preferable to take a contra proferentem approach.

It was regrettable, he went on to say, that the Commission had decided not to develop standard provisions on the most-favoured-nation principle for economic and investor agreements that would allow for harmonization of relevant international treaty practice and guarantee further predictability.  On specific provisions of the draft guidelines on the protection of the atmosphere, he expressed concern with language such as “common concern of humankind” and “common heritage of humanity”.  A better formulation would be the “common care of humanity”.  It was appropriate to consider, as well, pollution that was not caused by humankind.

LIESBETH LIJNZAAD (Netherlands), congratulating the Commission for the excellent work on its website, noted that the same could not be said of the current website of the United Nations in general.  In its new form, the United Nations site reduced the visibility of its work on international law, she said, calling on the Legal Counsel to ensure that information on international law remained easily accessible.  As to the organization of the work of the Sixth Committee, she said the division of the subjects over the three clusters appeared somewhat unbalanced, and, regretfully, some of the most important topics had been scheduled for next week, when most legal advisors would have already left New York.

On the final report of the Study Group on the “Most‑Favoured‑Nation clause”, she noted that no significant changes to the 1978 draft articles had been deemed necessary and that the report’s focus, therefore, was on guidance with respect to the application and interpretation of said draft articles.  She concurred with the conclusions of the Study Group that no general rules on the interpretation and application of those clauses existed; such clauses must be interpreted individually.  However, the ejusdem generis principle was of great importance and the treatment to be claimed on the basis of a most-favoured-nation clause must be determined on a case-by-case basis.  In addition, dispute settlement clauses were individual to each bilateral investment treaty and should therefore not be covered by most-favoured-nation clauses.  Finally, she reiterated that the topic of jus cogens should be excluded from the programme of work of the Commission.

HELMUT TICHY (Austria) said the Commission’s clarification of the implications of the “Most‑Favoured‑Nation clause”, in particular in international trade and investment treaties, was a valuable contribution to public international law.  He specifically welcomed the adoption of five summary conclusions reflecting the main outcome of the Study Group’s work, which concurred with the Commission’s view that the scope of such clauses was to be determined by the interpretation rules laid down in the Vienna Convention on the Law of Treaties.  He further shared the view that the central, controversial question as to what extent those clauses encompassed dispute settlement provisions could be most appropriately solved by explicit language in the relevant treaties.  However, he expressed concern that the wording of that conclusion could lead to misinterpretation and suggested that a more nuanced formulation could have been adopted by the Study Group.

On the topic of “protection of the atmosphere”, he first turned to guideline 1 on the use of terms, noting that, in the atmosphere, “every pollution inevitably has transboundary effects”.  Thus, the qualification of “transboundary” was redundant and could complicate the matter.  He also questioned whether it was appropriate to delete, in the same definition contained in guideline 1, the word “energy” from the factors causing pollution; the 1982 United Nations Convention on the Law of the Sea referred explicitly to energy as a cause of pollution.  Finally, paragraph 4 of guideline 2 on the scope of the guidelines referred to the status of airspace under international law.  However, since airspace was under the complete and exclusive sovereignty of the relevant State, its status was also governed by national law.  Therefore, it should be clarified in the guidelines that they did not affect the national legal regulation of the airspace.

VERONIKA BOŠKOVIĆ-POHAR (Slovenia) said the report presented valuable and useful analysis for the application and interpretation of most-favoured-nation clauses and would be useful for treaty-negotiators, political decision-makers and practitioners.  She also welcomed debate on jus cogens.  It reflected common values and was the foundation of the modern international order.  Thus, a complete analysis of the categories of relevant norms was welcomed, including the possibility that some principles, such as those in the Charter, might attain the level of jus cogens.  She suggested examining the relationship between jus cogens, customary international law and public international law, noting that jus cogens should surpass those others as they were inconsistent with the persistent objector.

Congratulating the Commission on its contributions to international law, particularly to its promotion, progressive development and its codification, she noted a slowing down in the Commission’s work in recent years in that regard.  She stressed the need to continue support for codification.  In that light, she welcomed a second reading on the draft articles on “protection of persons in the event of disasters” in the next session.  On “protection of the atmosphere”, she welcomed the first report on the matter, particularly its incorporation in the draft guidelines as an obligation ergo omnes and the emphasis on cooperation.

MARTIN SMOLEK (Czech Republic), expressing agreement with the main conclusions reached on the interpretation of most-favoured-nation clauses, said that, indeed, interpretation must be done in accordance with articles 31 and 32 of the Vienna Convention on the Law of Treaties and provisions of each treaty should be interpreted independently.

On protection of the atmosphere, he said measures in that regard required immense resources, political will and resolute commitment to follow scientific advice.  The Commission should ask itself, however, whether the exercise in which it opted to be involved could effectively contribute to the global effort, he said, noting that he was far from being convinced that that was the case.  Any attempt to identify possible customary rules of international law proper to the topic would be premature.

While the Commission had opted for elaboration of a set of guidelines, he continued, it was not clear to whom those guidelines should be addressed and, mainly, which legal problems those guidelines should help to overcome.  It seemed that the Commission was heading towards recalling or restating various general principles already contained in a number of binding or non-binding international instruments without properly explaining the purpose of that “repetitive exercise”.

ION GÂLEA (Romania) said the Vienna Convention on the Law of the Treaties should remain the point of departure in the interpretation and application of the most-favoured-nation clauses contained in investment treaties.  The guidance given — that the States should stipulate “explicit language to ensure that it does or does not apply to the settlement of disputes” — was valuable for policymakers, drafters of international treaties, negotiators, tribunals and all those who deal with investment matters.

However, as stated by the Commission, the possible application of such a clause to dispute settlement remained a matter of treaty interpretation, he said.  Two lines of jurisprudence had developed: one, in the absence of a contrary indication, the clause would apply to jurisdiction; the other, in the absence of a clear indication that the clause applied to jurisdiction, consent of a State to arbitration must not be presumed.  Consent to jurisdiction or arbitration was to be established beyond a reasonable doubt.

On the topic “protection of the atmosphere”, he welcomed the clear definition of the term “atmosphere”.  Regarding “atmospheric pollution”, he said that, as Party to the 1979 Convention on Long-Range Transboundary Air Pollution (LRTAP), it would be helpful to list living resources, in addition to human life and “Earth’s natural environment”, as endangered by atmospheric degradation.  The clear statement of the State’s obligation to cooperate for the protection of the atmosphere and in further enhancing scientific knowledge was key to “global démarches” in the matter.

CARLOS JOSÉ ARGÜELLO GÓMEZ (Nicaragua) said there was pressing concern that the results of the International Law Commission’s work no longer held the same weight as the results of its work during the first half of its existence.  There had been many causes for that decline and not all of them were the responsibility of the Commission.  The Sixth Committee had as much responsibility as the Commission and the General Assembly in choosing the items to be discussed.  The selection of subjects for study, because of a lack of initiative in the Committee and the General Assembly, had been left at the free hands of the Commission, which, in good faith, had chosen topics aimed towards the progressive development of international law.

Results often had been to the contrary, he noted.  In the final analysis, those were topics that initially did not have clear support in the Committee.  Discussion of topics during the session could be improved by requiring members of the Committee to submit in writing their commentaries 15 days prior to the beginning of its session to allow bodies to have sufficient time to respond and to provide real opportunity for debate instead of a simple reading of prepared text that was sometimes irrelevant.

Highlighting changes with respect to guidelines 4 and 5 on the protection of the atmosphere, he expressed concern that the obligation was no longer a pure and simple obligation, but just an obligation as appropriate.  The obligation to protect the environment, Mother Earth and the air in which living beings breathed, was a fundamental right, like the right to life itself.  In effect it was a jus cogens obligation.  Protecting the environment was a huge obligation.  He expressed hope that the study of jus cogens would have a better fate than that of protection of the atmosphere.