Continuing Review of International Law Commission Report, Legal Committee Concludes First Cluster’s Topics, Commences Second Cluster
General Assembly President Urges Delegates to Advance Agenda Items with ‘a Spirit of Consensus’
During an eventful day in which delegations and visiting legal advisors heard an address from the President of the General Assembly, the Sixth Committee (Legal) concluded the first cluster of topics from the annual report of the International Law Commission and then commenced consideration of the second cluster.
“We must demonstrate that our best successes are still ahead and that today’s immense global challenges are neither intractable nor unconquerable,” Mogens Lykketoft, President of the General Assembly told the Sixth Committee. He stressed that the development and promotion of international law was one of the Organization’s primary goals and had been at the centre of its work since its foundation. The recently adopted 2030 Agenda for Sustainable Development had demonstrated what was possible “when we listen to each other and to other stakeholders” and maintained focus on the ultimate objective.
Even where there were differences, debates in the Sixth Committee had demonstrated that Member States all agreed on the importance of discussing them and taking action in “this most important legal forum in the world”, he said. Delegations should embrace the momentum and advance on the remaining agenda items with a spirit of consensus. He also encouraged participation in the third high‑level event of his Presidency on 12-13 July 2016, which would focus on the Organization’s role in the field of human rights.
Concluding consideration on the first cluster of topics from the annual International Law Commission report, speakers praised the Study Group’s final report on the most-favoured-nation clause. However, delegates also highlighted the need for further work on the topic in the area of international investments and dispute settlement and debated the necessity of rules on protection of the atmosphere.
The representative of Venezuela said that, while the report provided “a very good picture” of the application and interpretation of the most-favoured-nation clauses, he said it fell short in addressing some fundamental issues. In many instances, it did not provide a solution to conflicting interpretations of those provisions by arbitral tribunals. He called for an alternative system, perhaps like an investment court system presented by the Transatlantic Trade and Investment Partnership, which could serve as a starting point for permanent regional investment tribunals and an international investment appeals court.
Similarly, the representative of the Russian Federation said that, in reviewing that clause with regard to dispute settlement, the focus had been on the practice of the World Trade Organization and in the context of bilateral investment treaties. In that regard, preference had been given to arbitration tribunals over States’ practice. Despite the objective difficulties in studying State practice, he stressed the importance, nonetheless, of considering such practice. He also expressed scepticism of the need to formulate rules on the protection of the atmosphere, one of the topics concluded today, and cautioned against exceeding the limits the Commission had set for itself on the topic.
That stance was echoed by the representative of the United States, who stressed that any exercise to extract broad legal rules from environmental agreements concluded in particularized areas would not be feasible. In fact, it might even potentially undermine carefully negotiated differences among regimes and could complicate ongoing and future negotiations and inhibit State progress on the environment.
Slovakia’s representative also commented that, in dialogues with scientists, many important elements were defined by physics rather than law. The general obligation of States to protect the atmosphere was, so far, not based on convincing legal arguments, but on “general feelings of responsibility”. He hoped the Commission would have the opportunity to rethink the concept and provide more concrete proposals for principles that would be based on sound legal formulations.
Introducing the second cluster of topics from the Commission’s report, its Chairman, Narinder Singh, provided an extensive overview, detailing the Commission’s debate on “Identification of customary international law”. He welcomed preliminary comments from delegations on the 16 draft conclusions on the topic that had been provisionally adopted by the Drafting Committee so far. He also requested States to submit additional information on their practice relating to the formation of customary international law and the types of evidence for establishing such law in a given situation.
He then elaborated on the four draft articles the Commission had adopted provisionally on the next topic of the second cluster, “Crimes against humanity”, which provided for the scope of the articles, including both prevention and punishment of such crimes, and set out the general obligations of States in that regard. They also provided a definition of crimes against humanity for the purposes of the draft and expanded on the obligation of prevention.
On the final topic of the second cluster, “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he noted that the draft conclusion in the report addressed constituent instruments of international organizations.
As discussion opened on the three topics, many speakers around the room addressed the complex nature of the topic “Crimes against humanity”, with Sweden’s representative, speaking also for the Nordic countries, welcoming the Special Rapporteur’s approach to keep the definition of crimes against humanity in article 7 of the Rome Statute as the material basis for any further work of the Commission on that topic.
However, the representative of Greece, addressing the possibility of the draft articles being elaborated into a convention, expressed concern that future negotiations of such an instrument on the matter risked the consensus that had been reached on the definition of crimes against humanity in article 7 of the Rome Statute.
Also speaking today on the first cluster of topics were representatives of Malaysia, Germany, Philippines, Portugal, New Zealand, Turkey, Algeria, Jamaica and Argentina.
Speaking on the second cluster of topics were representatives of France, Austria, and Czech Republic. A representative of the European Union also spoke on the second cluster.
The Sixth Committee (Legal) would next meet on Friday, 6 November, at 10 a.m., to hear an address from the President of the International Court of Justice and to continue consideration of its second cluster of topics from the report of the International Law Commission.
Background
The Sixth Committee (Legal) met today to continue deliberations on topics related to the report of the International Law Commission on the work of its sixty-seventh session. For further background, please see Press Release GA/L/3506.
Statements on First Cluster
SERGEY A. LEONIDCHENKO (Russian Federation), noting that the six years of work on the most‑favoured‑nation clause had resulted in a useful guide, said the Commission should consider producing such reports offering a comprehensive review in other areas of international law. The Commission’s work was exceptional in that, unlike academic research, it took into consideration the practice of States with different systems and the comments of States in the Sixth Committee. He noted that the review of the most-favoured-nation clause with regard to dispute settlement had focused on the practice of the World Trade Organization and in the context of bilateral investment treaties. In that regard, preference had been given to arbitration tribunals over States’ practice. Despite the objective difficulties in studying State practice, he stressed the importance, nonetheless, of considering such practice. He also said that most-favoured-nation provisions should not be applied to dispute settlements unless agreed upon by the parties.
He expressed his scepticism of the need to formulate rules on the protection of the atmosphere. However, the Commission had taken the correct decision to limit the subject to certain conditions and should keep to those limits. While he had no objections to its current definition of the “atmosphere”, he said the definition of “atmospheric pollution” went beyond those limits; it addressed damage caused beyond the State of origin. Draft guideline 2 stated that local or domestic pollution would not be considered, although such pollution could have transboundary effect. Another question was whether it was possible to consider atmospheric degradation without touching on climate change, which was outside the Commission’s consideration. Furthermore, he questioned how the principle of international cooperation would fit into the principles of international law and, noting the report’s attention to the Arctic, said that specific regions should not be included in the document.
SHARIFAH NURUL FARIHEEN (Malaysia) shared the view that it was ultimately up to States negotiating a most-favoured-nation clause to determine whether it encompassed dispute settlement provisions. There were substantive elaborations in the report on the interpretation of the clause in elucidating the principle and context as to when such a clause would apply to substantive treatment obligations and not the dispute settlement provisions. The various interpretative techniques in the report could assist States in the negotiation, drafting, interpretation and application of the most-favoured-nation clause in treaties. The clause should be interpreted in a way such that its application was limited to substantive preferential treatment provided in treaties and not to investor-State dispute settlement mechanisms. The final report should serve as a non-legally binding guide to assist in the interpretation and application of the clause.
Turning to the topic “Protection of the atmosphere”, she sought, in the draft guidelines, clarification on the definition of “atmosphere”, specifically on the status of elements of the atmosphere not covered by the proposed definition. The definition proposed by the Commission should not alter or narrow the existing scientific interpretation of the atmosphere. In addition, technical and scientific experts should be consulted in framing a clear, comprehensive and acceptable definition of “atmospheric degradation”. Clarification was also needed on the specific types of “human activities” to be covered under the draft guidelines to ensure there would be no overlap with “human activities” covered under the existing environmental regime on environmental protection. Regarding international cooperation, she suggested that there were many forms of cooperation that could be relevant beyond the exchange of information and joint monitoring highlighted in the draft guidelines, such as technology transfer and capacity‑building.
MICHAEL KOCH (Germany) welcomed the Commission’s decision to acknowledge, in the preamble to the draft guidelines, the importance of the atmosphere and its essential role for sustaining life on earth, human health and welfare, and ecosystems. He also expressed appreciation that the Commission had recognized the urgency and the global character of atmospheric protection by calling it, in the preamble, a “pressing concern for the international community as a whole”. In that regard, he said the Special Rapporteur’s initial recommendation to classify atmospheric protection as a “common concern of humankind” could be justified.
He noted that, in the United Nations Framework Convention on Climate Change (UNFCCC) and in General Assembly resolution 45/53, climate change was already explicitly classified as a common concern of humankind, given that the ozone layer was a common resource. He welcomed, as well, the fact that draft guideline 5(a) underscored the obligation of States to cooperate for the protection of the atmosphere. That obligation was also in article 2, paragraph 1(b) of the Kyoto Protocol to the UNFCCC.
IRENE SUSAN BARREIRO NATIVIDAD (Philippines) said that most-favoured-nation clauses established the principle of equality in international treatment. Yet, while the 1978 draft articles were still helpful, they had been overtaken by developments. She concurred with the Commission that the scope of such clauses had been the key interpretative issue. If the parties had not agreed or had failed to use clear and explicit language, most-favoured-nation clauses in bilateral investment treaties could extend from substantive obligations to procedural protections or dispute settlement provisions. She thanked the Study Group for highlighting the role of the Vienna Convention on the Law of Treaties in interpretation and noted that the conclusions of the final report would assist authorities in more clearly negotiating bilateral investment treaties and tax treaties, among others.
She said she generally agreed to the text of the draft guidelines on the protection of the atmosphere and the preambular paragraphs, adding that draft guideline 3 belonged in the preamble. She also voiced support of the proposal for the Commission to hold part of its future sessions in New York, pointing out that both the Commission and the New York missions would benefit. Disappointed at the curtailment of the Codification Division’s desktop publishing initiative, she asked, “What value is the work of the ILC [International Law Commission], and the work of the UN on the Rule of Law […] if that work is not disseminated to a wider readership in a timely manner?” The Commission’s request for the Codification Division to continue to provide it with legal publications was also welcomed.
STEPHEN TOWNLEY (United States) said the report on the most-favoured-nation clause could serve as a useful resource for Governments and practitioners with an interest in that information. He agreed with the decision not to prepare new draft articles or revise the 1978 draft articles; such clauses should be interpreted on the basis of the rules for interpretation of treaties set out in the Vienna Convention on the Law of Treaties.
However, he expressed concern at the direction the topic of “Protection of the Atmosphere” appeared to be taking. Any exercise to extract broad legal rules from environmental agreements concluded in particularized areas would not be feasible and might potentially undermine carefully negotiated differences among regimes. Furthermore, the topic was likely to complicate ongoing and future negotiations and might inhibit State progress in the area of the environment.
Of greatest concern in the draft guidelines was States’ obligations to cooperate on protection of the atmosphere, which did not reflect customary international law and should be reconsidered, he said. If the Special Rapporteur’s proposed long-term plan of work were to be followed, the work would continue to stray outside the scope of the 2013 understanding into unproductive and even counterproductive areas. The Commission should suspend or discontinue its work on the topic.
Noting the addition of the topic “Jus cogens” to the Commission’s active agenda, he urged the Commission to focus clearly and carefully on treaty practice, notably under the rules reflected in the Vienna Convention on the Law of Treaties and on other State practice that illuminated the nature and content of jus cogens, the criteria for its formation and the resulting consequences. In that light, he appreciated the Commission’s request for States to provide information on those issues and urged all States to respond to that request.
RITA FADEN (Portugal) said that, although it was sometimes difficult for States to keep up with the Commission’s requests for information on State practice and domestic legislation, the Commission should continue to survey States for its codification work. To increase such participation and for that process to be as inclusive as possible, she suggested that priority be given to aiding the development of national legal services through the Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law. Pleased at the inclusion of the topic “Jus cogens”, she said its relation with other norms and principles of international law required clarification.
She endorsed the conclusions in the report on the most-favoured-nation clause, underlining the continued relevance of the core provisions of the 1978 draft articles and the Vienna Convention on the Law of Treaties. Regarding application to dispute settlement in investment treaty arbitration, she highlighted the need to address the potential overlap between substantive and procedural rules, which could be achieved through a carefully worded treaty provision. The report’s conclusions were of unquestionable practical value to all stakeholders.
Turning to the topic “Protection of the Atmosphere”, she said she supported adoption of the concept “common concern of humankind”, as it provided an adequate conceptual framework to address the legal questions of the atmosphere. That concept had been established in State practice and literature and found universal acceptance in the first preambular paragraph of the UNFCCC and more recently in the 2030 Agenda for Sustainable Development.
JOHN ADANK (New Zealand) noted that the ever-evolving nature of jurisprudence on the most-favoured-nation clause increasingly restricted the ability to authoritatively define how that clause should be applied in international law. Citing the robust and extensive review of the case law in the report, he encouraged its wide dissemination to provide context and guidance for States and practitioners in the field of investment arbitration. He expressed hope that the report would provide some assistance in encouraging consistency between the decisions of various bodies on the interpretation of most‑favoured‑nation obligations in bilateral investment treaties.
He said States’ practice on the nature of jus cogens, the criteria for its formation and the consequences as expressed in official statements and decisions of national regional courts and tribunals could allow the Commission to determine whether it had sufficient information to provide an illustrative list of norms that had achieved the status of jus cogens. That would, in turn, enable consideration of and discussion with States.
Expressing strong support for the Commission’s efforts in building relationships with New York-based delegates to the Sixth Committee, he welcomed the increase of informal briefings by Commissioners for Committee delegates that had occurred in the last year. On that positive trend, he said he appreciated the Commission’s consideration of holding a half session in New York and looked forward to that occurring in either 2017 or 2018.
İPEK ZEYTINOĞLU ÖZKAN (Turkey) said that interaction between Sixth Committee delegations and the Commission members during the intersessional period greatly contributed to the dialogue between Member States and the Commission on its work. She also welcomed the establishment of the Commission’s new website, which would allow further dissemination of its work and its activities to the wider public.
Turning to the topic “Jus cogens”, she said she did not think there was a need emanating from States regarding the principle’s progressive development and codification. The Commission had previously considered addressing the issue and finally decided not to do so; there was doubt about its useful purpose at that stage, since practice was insufficient, she recalled. The situation was not that different today. She would welcome further explanations on how examination of the topic would impact its development, she said, urging a prudent approach by the Commission on the matter.
METOD ŠPAČEK (Slovakia) said the draft articles of the most-favoured-nation clauses provided little or no guidance concerning the terms actually used in bilateral investment treaties. The guidance for interpretive techniques contained in part IV of the Study Group’s final report was particularly helpful, despite the fact that there was no basis for concluding that there would be a single interpretation of a most-favoured-nation provision applicable across all investment agreements and that most-favoured-nation clauses had to be interpreted independently, in accordance with articles 31 and 32 of the Vienna Convention on the Law of Treaties.
He said that, while he attached great importance to the protection of the atmosphere, he noted that, in dialogues with scientists, many important elements were defined rather by physics than by the law. That might contribute to misleading conclusions. Welcoming the fact that draft guidelines 3 and 4 had been deferred for further consideration, he said the general obligation of States to protect the atmosphere was, so far, not based on convincing legal arguments, but on “general feelings of responsibility”. He hoped the Commission would have the opportunity to rethink the concept towards more concrete principle proposals that would be based on sound legal formulations. He fully supported the inclusion of the topic “Jus cogens” in the Commission’s programme of work, as the contours and the legal effects of that principle remained poorly defined.
MEHDI REMAOUN (Algeria), on the topic “Most-Favoured-Nation clause”, underlined the relevance of the Vienna Convention on the Law of Treaties as the point of departure in interpretation of investment treaties. Concurring that the clause remained unchanged in character since the conclusion of the 1978 draft articles, he said they should continue to be the basis for its application, even if they did not provide answers to all the interpretative issues.
He also welcomed the Special Rapporteur’s approach to the topic “Protection of the atmosphere”. Noting that there was no definition of the term “atmosphere” in relevant international instruments, he understood the definition in the revised draft guidelines to be a practical solution; it was without prejudice to relevant political negotiations, including on climate change.
He went on to say that parties to the UNFCCC might agree, under the actual draft text for consideration during the upcoming Conference on Climate Change in Paris, on further definitions that might include the term. He further welcomed draft guideline 2, which covered concerns on interference in other international processes and said that guideline 5 should fully cover the common understanding of “cooperation”, which would imply the notion of assistance, including technology transfer.
KATHY-ANN BROWN (Jamaica) said that, in regards to the most-favoured-nation clause, the Commission could not shy away from dealing with treaties between States that governed commercial relations of States and transnational corporations. Some of that accounted for a greater share of global income than many small developing countries. While noting the Commission’s reluctance to “tread cautiously”, she said the Study Group’s approach in underscoring the fundamental principles of treaty interpretation was an important contribution.
The World Trade Organization (WTO) Appellate Body provided for a mechanism for achieving coherence in the interpretation of the most-favoured-nation clause in the trade sphere, she continued. Insofar that the most-favoured-nation clause in article II of the General Agreement on Trade in Services had implications for the provisions of bilateral investment treaties, the Appellate Body could assist in somewhat clarifying that area of the law.
Concurring with the view that there was no need to examine the most‑favoured‑nation clause in the trade context, given the pivotal role played by the Appellate Body, she said she also supported the conclusion of the Study Group that the key question of ejusdem generis had to be determined on a case-by-case basis. She also said she hoped that the Commission and the Sixth Committee would do more to address some of the critical legal questions of interpretation in international investment law with the potential to significantly impact the sustainable development of developing countries.
HOLGER MARTINSEN (Argentina), associating himself with the Community of Latin American and Caribbean States (CELAC), agreed that interpretation of the most‑favoured‑nation clause must be done in light of the standards reflected in the Vienna Convention of 1969 that addressed treaty interpretation. For that reason, there must be a case-by-case analysis of how the clause was applied, taking into account the lack of expressed consent that a State had shown in a treaty.
Noting the importance of jus cogens in international law, he underscored that treatment of the item required an extremely cautious approach and should include an evaluation of the impact the Commission’s conclusions could have on international relations. With respect to the Commission’s request to Member States for information, he said the Commission must bear in mind that national practice of its internal bodies with respect to jus cogens could be extremely limited.
On the topic of “Protection of the atmosphere”, he said he was interested in the continuing examination of how principles identified in the matter would be reconciled with conventional and existing law in international law. In particular, he expressed interest in the interaction between principles being drafted with bilateral or regional treaties.
ISAÍAS ARTURO MEDINA MEJÍAS (Venezuela), associating himself with CELAC, said an international investment dispute settlement must not elevate transnational capital status to that of a sovereign State or enable investors to challenge the right of Governments to regulate and determine their own domestic affairs. Citing Article 103 of the United Nations Charter, he said bilateral and multilateral free trade and investment agreements that contained provisions conflicting with the Charter must be revised or terminated.
Also citing several articles of the Vienna Convention on the Law of Treaties, he underscored that treaties or treaty provisions that violated pre‑emptory norms of international law (jus cogens) are contra bonos mores and, therefore, null and void. He called for an alternative system, perhaps like an investment court system presented by the Transatlantic Trade and Investment Partnership, which could serve as a starting point for permanent regional investment tribunals and an international investment appeals court.
While the report provided “a very good picture” of the application and interpretation of the most-favoured-nation clauses, he said it “falls short” in addressing some fundamental issues. In many instances, it did not provide a solution to conflicting interpretations of those provisions by arbitral tribunals. Citing specific sections of the report and describing its shortcomings, he said States generally had no idea how the concept was applied, even with respect to substantive matters. “The fact is that MFN [most favoured nation] is an unworkable concept in investment treaties and should never be accepted,” he stated. It allowed the picking and choosing of the best investor clauses from other treaties without considering the treaty as a whole.
He invited the Sixth Committee’s delegates to identify, for the Commission’s consideration, new topics of international investment dispute settlement agreements, bilateral investment treaties and investment state arbitration, among other important issues related to the progressive development of international law. He also requested the Commission to study further the implications of the use and abuse of the most-favoured-nation clause in investment State agreements and bilateral investment treaties in their next report.
Closing Remarks by Special Rapporteur
Shinya Murase, Special Rapporteur, Protection of the Atmosphere, speaking also for Donald McRae, Chair of the Study Group on the Most-Favoured-Nation clause, expressed appreciation for the comments received about that Study Group’s work and report. Concerns about whether that type of report was an appropriate outcome with respect to the Commission’s work on the progressive development and codification of international law had been noted, he said.
He also expressed appreciation to representatives who had spoken on the topic of “Protection of the atmosphere”, noting that comments, as well as an improvement of the draft guidelines, would be reflected in next year’s report.
Introduction of Second Cluster Topics
NARINDER SINGH, Chairman of the International Law Commission, introduced the second cluster of topics for consideration. Included in that cluster was the topic “Identification of customary international law”, of which the Drafting Committee had provisionally adopted eight draft conclusions, as well as additional paragraphs for two of the draft conclusions provisionally adopted in 2014. The Commission had taken note of the 16 draft conclusions on the topic, provisionally adopted by the Drafting Committee so far, which could be found in the annex to document A/CN.4/L.869. Any preliminary comments from delegations were welcomed. However, those conclusions had not yet been adopted by the Commission, he emphasized, adding that the Commission would consider them, along with accompanying commentaries, next year.
He also noted that the third report on the matter covered issues raised last year, in particular on the relationship between general practice and opinio juris, the question of inaction, and the relevance of the practice of international organizations and of non-State actors. New issues were also considered, beginning with certain forms of practice and of evidence of opinio juris, namely treaties and resolutions of international organizations and conferences. It further dealt with the role of judicial decisions and writings and addressed questions relating to the category of “particular custom” and to the persistent objector rule.
The Commission, he went on to say, reiterated support for the two-element approach to the identification of customary rules, which required ascertaining the existence of a general practice and acceptance of that practice as law (opinio juris). Although both elements must be present, each element should be separately ascertained; however, the same material could serve as evidence of both elements. On inaction, he said that the situation should warrant reaction by the States concerned, that States must have knowledge of the practice in question and that inaction had to be maintained for a sufficient period of time.
Views differed within the Commission on the relevance of the practice of international organizations, he continued. Some members pointed out that such practice could contribute to the formation or expression of rules of customary international law, while others stressed that it could be the case only if the practice of the international organization reflected the practice or conviction of its member States or if it would catalyse State practice. There were also differences on the proposed draft conclusion on the conduct of other non-State actors, which held that such practice was not for the purposes of formation of identification, particularly in light of the importance of the practice of certain non-State actors such as the International Committee of the Red Cross.
On the role of treaties and resolutions of international organizations and adopted at international conferences, he said some had stressed that all treaty provisions did not have equal relevance as evidence of rules of customary international law. Only treaty provisions of a “fundamentally norm-creating character” could generate such rules. A range of views was also expressed on the evidentiary value of resolutions adopted by international organizations or at international conferences. One viewpoint held that such resolutions, particularly those of the General Assembly, could, under certain circumstances, be regarded as sources of customary international law, although it was generally agreed that the evidentiary value of such resolutions should be assessed with great caution and were dependent on other corroborating evidence of general practice and opinio juris.
The Commission welcomed the conclusion that judicial decisions and writings were relevant for the identification of rules of customary international law and emphasized the special importance of judicial decisions of international courts and tribunals, he said. There was disagreement, however, on the relevance of decisions by national courts. It was proposed that the term “writings” was too broad and should be qualified. There had also been debate on whether particular custom fell within the scope of the topic; Commission members disagreed on inclusion of the persistent objector rule.
He then summarized the concluding remarks of the Special Rapporteur on the topic, emphasizing that the aim of the topic was to assist in determining whether a rule of customary international law existed and, if so, its content. Among the Special Rapporteur’s many other remarks, he noted that the application of the two‑element approach in different fields should consider the context in which evidence arose, which required careful evaluation of the factual foundations of each case. The Special Rapporteur had also noted that the draft conclusion on the persistent objector had received widespread support and acknowledged that it should be illustrated by reference to practical examples in the commentary.
Based on the Special Rapporteur’s indications, he said it was a realistic aim to complete a first reading of the draft conclusions and commentaries on the topic next year and, in that light, he requested States to submit by 31 January 2016 any additional information on their practice relating to the formation of customary international law and the types of evidence for establishing such law in a given situation, as set out in official statements before legislatures, courts and international organizations, as well as in decisions of national, regional and subregional courts. In addition, the Commission would welcome information about digests and surveys on State practice in the field of international law.
Turning to the topic “Crimes against humanity”, he said the Commission had provisionally adopted four draft articles, the first of which established the scope of those articles, including both the prevention and punishment of such crimes. The draft articles would focus solely on crimes against humanity and did not address other grave international crimes such as genocide, war crimes or the crime of aggression. Furthermore, they would avoid conflicts with relevant existing treaties or the obligations of States under the constituent instruments of international or “hybrid” criminal courts or tribunals, including the International Criminal Court.
Draft article 2 set forth a general obligation of States to prevent and punish crimes against humanity, recognized as “crimes under international law” whether or not committed in time of armed conflict (both international and non‑international armed conflict). Draft article 3 provided a definition of such crimes for the purpose of the drafts, which reflected almost verbatim the text of article 7 of the Rome Statute and also contained a “without prejudice” clause so as not to affect broader definitions provided in international instruments or national laws.
Draft article 4 set forth the obligation of prevention, which contained four elements: not to commit such acts through their own organs or persons whose conduct was attributable to the State concerned under international law; to employ the means at their disposal to prevent persons or groups not under their direct authority from committing such acts; to pursue measures to prevent the act from occurring; and to pursue certain forms of cooperation with each other as well as with international organizations. No exceptional circumstances might be invoked to justify such offences. The formulation of crimes against humanity would speak to the conduct of either State or non-State actors.
He also requested any additional information from States, by 31 January 2016, on whether their national law at present expressly criminalized “crimes against humanity” and, if so, to provide the relevant texts; the conditions for their exercise of jurisdiction over an alleged offender; and on decision of their national courts that had adjudicated on questions of crimes against humanity.
On the final topic of the second cluster, “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said that draft conclusion 11, on “constituent instruments of international organizations”, had been provisionally adopted by the Commission. Such instruments were addressed in article 5 of the Vienna Convention. The draft referred only to the constituent instruments of international organizations and did not address every aspect of the role of subsequent agreements and subsequent practice in relation to the interpretation of treaties involving international organizations, nor did it apply to treaties adopted within or concluded by such an organization.
He noted that the work of the Commission on the matter would be assisted by States’ provision of: any examples of decisions of national courts in which subsequent agreement or subsequent practice had contributed to the interpretation of a treaty, and any examples of where pronouncements or other action by a treaty body consisting of independent experts had been considered as giving rise to subsequent agreements or subsequent practice relevant for the interpretation of a treaty.
Statements on Second Cluster
LUCIO GUSSETTI, the European Union, turning to the topic “Identification of customary international law”, said the contribution of international organizations to the formation of customary international law depended on the competencies that States had conferred to them. Such contributions also depended on the powers that States had provided those organizations in order to attain the objectives set out in the constituent treaty. Citing various court judgments, he said those examples of treaty and judicial practice confirmed that the formation and identification of customary international law were effected through different sources.
The notion of international organizations — taken on its own in isolation of the specific competencies conferred by its founding treaties — did not reflect appropriately the treaty-making, legislative and judicial powers of an organization like the European Union within the wide variety of organizations, he continued. It would be desirable to introduce appropriate language for that purpose in the context of the Commission’s conclusions or, if not possible, in the commentary so as to constitute a practical help for practitioners for the identification of customary international law. He also specified ways in which the draft conclusions could be further clarified in that regard.
Turning to the topic “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said he could concur with the text of draft conclusion 11. However, he stressed that the applicability of articles 31 and 32 of the Vienna Convention on the Law of Treaties to constituent instruments of international organizations was “without prejudice” to any relevant rules of the organization. He welcomed that the Special Rapporteur had presented in his third report certain specificities of the European Union regarding the topic with respect to the interpretation of its founding treaties.
He also drew attention to a very recent judgment of the Court of Justice of the European Union where the Court had stressed the importance of following separate procedures in cases where it might be necessary to have decisions adopted by both the Union and by its Member States in their independent capacity. He also cited another recent judgment by that Court with respect to the constituent instrument of the so-called “European Schools”, which could also be of interest to the Commission.
ANDERS RÖNQUIST (Sweden), speaking for the Nordic countries, welcomed the Special Rapporteur’s approach to keep the definition of crimes against humanity in article 7 of the Rome Statute as the material basis for any further work of the Commission on that topic and to treat the character of the topic as complementary to the Statute. Strongly endorsing that the focus be on the obligation of prevention, he suggested an additional article that would lay down the obligation to adopt national laws and policies establishing awareness of such crimes and promoting early detection of any risk of their commission, among other things.
Turning to the topic “Subsequent agreements and subsequent practice in relation to treaty interpretation”, he said that the general comments of United Nations human rights treaty bodies could be viewed as interpretative statements, which could contribute to a normative consensus and serve as means to ensure a dynamic nature of international human rights law. The European Court on Human Rights had, on several occasions, referred to general comments by those treaty bodies in interpreting human rights norms.
As for the topic of “Identification of international customary law”, he said that a customary rule might develop among a limited number of States, but that it required that there be a very clear identification of which States had participated in the practice and accepted it as law. Welcoming efforts to include in the conclusions the persistent objector rule, he said that a State which had persistently objected to an emerging rule of customary international law was not bound by that rule. Particular consideration must be given to universal respect for fundamental rules, particularly those for the protection of individuals.
FRANÇOIS ALABRUNE (France), addressing all three clusters of the Commission’s report, said that, with respect to the topic “Most-favoured-nation clause”, the report did not provide answers to several questions concerning interpretation that were still before the Sixth Committee. International investment law was quite a new branch and a subject of major controversy. Noting that competence in that area was divided among a number of bodies or institutions, he favoured common studies in the International Law Commission and the United Nations Commission on International Trade Law.
Turning to the topic of “Protection of the atmosphere”, he said questions persisted about the general direction that the Special Rapporteur and the Commission would like to give to work conducted in conformity with agreed framework. However, despite those questions, he favoured the three draft guidelines and four preambular paragraphs that had been provisionally adopted by the Drafting Committee. He welcomed draft guideline 3, proposed by the Special Rapporteur. With respect to the presentation of the legal status of the atmosphere in the preamble, the wording “the pressing concern for the international community” was preferable to the term “common concern of humanity”.
Regarding the topic “Customary international law”, he called the work on the topic “extremely good”. He appreciated, in particular, the so-called “two elements approach” agreed to by the Special Rapporteur. However, comments on draft conclusion 3, paragraph 2, could clarify that it did not preclude in some cases that the same documentation could be used as proof for both elements. Touching on other aspects of the topic, he said it was appropriate to distinguish between the role of jurisprudence and doctrine in determining customary international law. A different conclusion should be prepared with respect to the role of the work of the Commission as proof of a rule of customary international law. With respect to the draft conclusions concerning special customs and persistent objectors, he said the inclusion of concrete examples in commentary to draft conclusions would be helpful to understand need for those provisions on those subjects.
On the topic “crimes against humanity”, he said the Commission’s proposals were of interest but gave rise to some concern with respect to the scope of obligation of prevention. It was important to determine more precisely the exact content of that obligation. The formula used in draft article 4, which concerns the legal, administrative, judicial and other effective preventive measures, did not bring all the necessary clarity in that respect. For example, there was the question of whether the education training measures to counter the defence of crimes against humanity were covered by the draft article.
Moreover, he said he wondered about the need to specify in the commentary that the obligation to punish and prevent crimes against humanity presupposed the existence of a customary obligation vis-a-vis States not to commit such crimes. Today, there were other crimes under international law, such as organized transnational crime. The Rome Statute, which referred to “most serious crimes of international concern” or “which caused concern for the international community as a whole”, could guide the current draft and refer to crimes against humanity as “most serious crimes of an international scope”. As for the Commission’s future work on the topic, he said the idea of establishing a convention monitoring body was not necessarily appropriate.
Concerning the topic “Protection of the environment in relation to armed conflict”, he said that “environment” and “natural environment” appeared inconsistent and should be clarified. Differences in approaches were also needed should the study apply to both international armed conflict and non-international armed conflicts.
With respect to the topic “Immunity of States officials from foreign criminal jurisdiction”, he said the work of the Commission was extremely important, especially in regards to its focus on acts carried out in an official capacity. The distinction between acts performed in official capacity and acts performed in a private capacity was sufficiently clear. In order to preclude any acts subject to immunity, an article should be devoted to exceptions, instead of mentioning those acts.
Turning to the topic of “Provisional application of treaties”, he said he was not convinced that the Vienna Convention of 1986 on the Law of Treaties among States and international organizations reflected customary international law as a whole.
He also noted that, in regards to new subjects in the Commission’s programme of work, the study of jus cogens did not seem to meet the needs of States and could give rise to controversy, given division among States on that matter. More so, it was desirable that the functioning of the Commission avoid duplication or multiplication of working groups and projects, as they did not facilitate in-depth study and slowed down the progress of work. Also, the list of subjects for which the observations of States were requested was, again, much too long. Its length could make it impossible for most, if not all, States, to prepare and communicate relevant observations on all the subjects in the time allowed.
The Commission’s working conditions in Geneva were “perfectly adapted”. He did not see the point of the Commission holding sessions in New York. He welcomed the Commission’s efforts to ensure respect for language equality, noting that comparing texts in different languages helped to improve the quality and precision of the Commission’s work. In that context, he suggested that the Commission advance the date of its session so that delegations could receive earlier its report in various official languages.
AUGUST REINISH (Austria) said he was surprised by the use of the term lex ferenda in paragraph 70 of the Commission’s report on identification of customary international law, which suggested that the expression would relate to law in statu nascendi. It was his understanding that lex ferenda was not law beginning to be formed, but simply the expression of the political wish that new legal rules be adopted. He pointed out that draft conclusion 4, paragraph 3, on the irrelevance of the conduct of other actors, did not do justice to the important contribution of the International Committee of the Red Cross to international practice. Turning to draft conclusion 11 (1)(c), he said it should be clarified that the “general practice” to which a treaty had given rise must include also the practice of non-State parties to the treaty.
On the topic “Crimes against humanity”, he said the text of draft article 1 did not reflect the legal relationship as set out in the commentary, namely that the draft article avoid any conflict with the obligations of States arising under the constituent instruments of international or hybrid criminal courts or tribunals. It should be reflected in the final draft article; otherwise, the lex posterior regime of the Vienna Convention on the Law of Treaties could lead to different results. As to draft article 2, he asked if there was a distinction between “international crimes” and “crimes under international law”. If not, he said, the latter expression should be avoided.
Turning to the topic “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said the practice of international organizations was of particular importance for the interpretation of their constituent instruments, since it entailed even the possibility of the application of the implied powers doctrine. The term “international organizations” should be understood as referring only to intergovernmental organizations. The term “constituent instruments” was only comprised of instruments that were treaties. That did not exclude, however, that organizations could be based on constituent instruments not having treaty character. With regard to the commentary on conclusion 11, paragraph 4, he said he would have appreciated an express reference to article IX, paragraph 2 of the World Trade Organization agreement regarding the authentic interpretation of that agreement, as well as the multilateral trade agreements.
MARIA TELALIAN (Greece) said the Special Rapporteur’s report on the identification of customary international law provided useful and clear guidance on the complex relationship between custom and written texts and drew clear conclusions from a “mass of relevant case law and scholarly writings”. Among her comments on specific draft texts, she welcomed the differentiation between inaction and inaction in the case of circumstances calling for some reaction; only the latter qualified as possible evidence of opinio juris. She also voiced support for the option of the Drafting Committee to deal with judicial decisions and writings as subsidiary means to identify customary international law in separate conclusions. Furthermore, she considered the applicability of the persistent objector rule to be questionable both in relation to the rules of jus cogens and to the general principles of international law.
Turning to the topic “Crimes against humanity”, she was unconvinced of the desirability and necessity of a convention addressing that category of crimes exclusively. The Rome Statute of the International Criminal Court provided sufficient legal basis for the domestic criminalization and prosecution of such crimes. Indeed, her country had enacted legislation on that basis. It was of concern that future negotiations of a convention risked the consensus that had been reached on the definition of crimes against humanity in article 7 of the Rome Statute.
Furthermore, she continued, such a convention could hamper efforts to achieve universality of that Statute. The international community should focus instead on promoting its universality and effective implementation and on the establishment of the necessary mechanisms for inter-State cooperation for the domestic investigation and prosecution of the most serious crimes of concern to the international community. In that context, she said she supported the international initiative towards establishment of a multilateral treaty for mutual legal assistance and extradition in domestic prosecution of atrocity crimes.
On the topic “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, she welcomed the Commission’s reaffirmation of the applicability of articles 31 and 32 of the Vienna Convention that were constituent instruments of international organizations. In addition, it would be appropriate to reintroduce into paragraph 3 of draft conclusion 11 that it was the practice of an international organization in the application of its constituent instrument itself, as distinguished from the practice of its member States, which might, in its own right, contribute to the interpretation of that instrument when applying articles 31 and 32. More information was needed regarding the difference between the general practice of an international organization and its established practice. She said she hoped the Commission would continue its consideration of the topic expeditiously with the view of providing a complete set of draft conclusions, which would not only be of value to States, but to the consolidation of the rule of law.
PETR VÁLEK (Czech Republic) said he was content both with the general direction of work on the topic “Identification of customary international law” and the conclusions prepared to date. With respect to draft conclusion 3, concerning the assessment of evidence for the two elements, he wondered whether it was necessary to explicitly request that each element be ascertained “separately”, thus introducing “unnecessary rigidity” into the process. The commentary could be a better place for further explanation of how the ascertainment of each element should be conducted. Concerning draft conclusion 4 [5] on the requirement of practice, he said it would suffice that the commentary explain how the activities of non-governmental actors could eventually contribute to collecting the evidence of practice referred to in paragraphs 1 and 2 of draft conclusion 4 [5] for ascertaining such practice. He went on to cite other draft conclusions and provided comments on each.
Turning to the topic “Crimes against humanity”, he said the draft articles were non-controversial as they reiterated provisions of legal instruments that were largely adhered to by States and took into account relevant jurisprudence of national courts. He noted with satisfaction that the definition of crimes against humanity as contained in draft article 3 mirrored verbatim, except for necessary contextual changes, the definition of crimes against humanity contained in article 7 of the Rome Statute of the International Criminal Court. That definition had already received wide acceptance and was increasingly seen as a codification of customary international law of crimes against humanity. He welcomed the provisional adoption of draft article 4 on the obligation of prevention of crimes against humanity, noting that it addressed one of the important missing pieces in global efforts aimed at suppression of those crimes. He said, though, that he wondered whether the provision could be made more robust by incorporating some of the preventive measures specified and then explained in the commentary directly in the text of the draft article.
On the topic “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said the commentary accompanying draft conclusion 11 provided useful background for the analysis of questions concerning subsequent agreement and subsequent practice as a means of interpretation of such constituent instruments. He specified, among other points, that the two main elements of article 5 of the Vienna Convention that were reflected in conclusion 11 not be separated due to their intrinsic character, thus better conveying the thrust of that article. To better understand the distinction between the conduct of States as members of an international organization and at the same time as parties to the treaty that was a constituent instrument of that organization, he said it would be useful to recall conclusion 6, paragraph 1.