International Court of Justice’s Contributions Aids Organization’s Role in Global Legal Regime, Its President Tells Sixth Committee
Speakers Continue Deliberations on International Law Commission Report’s Second Cluster of Topics
The International Court of Justice’s contributions to the United Nations were evident not only in its establishment of the Organization’s international legal personality, but by clarifying the Organization’s role and place in the world’s legal regime, as well as the scope of its powers with which it was entrusted, the President of that Court told Sixth Committee delegates today.
Ronny Abraham, addressing the Committee for the first time as President of the Court, noted that the Court too would celebrate its seventieth anniversary in April 2016, an appropriate occasion to assess its work and its role within the United Nations. Citing a number of advisory opinions, he illustrated how the Court’s jurisprudence had assisted the Organization by shedding of light on the legal functions and powers of main bodies, such as the General Assembly and the Security Council.
Through its decisions, the Court had also brought clarity to the functions and responsibilities of United Nations principal organs, as well as on the limits of those functions, he told the Committee. Underscoring the necessity of preserving the balance of powers set out by the Charter, he said, by example, that the Court had determined that, although the Security Council was primarily responsible for the maintenance of international peace and security, the General Assembly also had certain powers in that regard and both were entrusted with complementary functions.
Despite their lack of binding effect, he also called attention to the Court’s reliance on the Assembly’s relevant resolutions which at times helped to identify an opinio juris. Underscoring the clear link between the work of the Sixth Committee and that of the Court, he added that dialogue between them had illuminated certain priorities in the United Nations legal road map and had reaffirmed the Court’s important role in the peaceful settlement of disputes.
In the ensuing interactive discussion, Mr. Abraham, in response to a question from Venezuela’s representative on whether there was an organ that could hold the Security Council accountable, said the Council’s powers were defined by the Charter. Interpretation of that instrument fell within the competence of the Court, which would provide an interpretation, if requested.
To the representatives of France and Morocco’s questions about the Court’s relationship with the International Law Commission, Mr. Abrams said that the Court in its judgments referred to texts adopted by the Commission. However, the Court had to distinguish between texts on international customary law, which it could use, and those on the development of international law. While the latter were sometimes taken into account, they did not form the basis of judgments.
The Sixth Committee also continued its debate on the second cluster of topics from the International Law Commission report, with many delegations emphasizing the difficulty in addressing the question on inaction and silence on the topic “Identification of customary international law”.
Netherlands’ representative pointed out that the difficulty with inaction was that it was hard to explain the meaning of silence. It raised an almost philosophical problem as to motives and presumed that all States’ action or inaction was based on rational decision-making.
However, identifying customary international law required State participation, noted India’s representative, who reminded delegations that developing States needed encouragement and assistance in submitting State practice. She urged the Commission to engage with regional organizations, as many developing and least developed countries did not have the capacity to explore the topic.
On the topic “Crimes against humanity”, several speakers welcomed that the draft articles used the same definition of such crimes as that in the Rome Statute. However, Mexico’s representative underscored that the draft article, which referred to State or organizational policy to commit crimes against humanity, should also specify that an organization should be “State-like”. Nazi policy was “State policy”, he said, and as such made the prosecution of perpetrators by the State itself unlikely. Breaking the barriers of State sovereignty would allow prosecution of crimes against humanity, given their severity.
Also calling for the further strengthening of that provision was Croatia’s representative, who said that by clearly extending the scope of the draft articles to non-State actors, the Commission would uphold the basic principles of the notion of crimes against humanity. Bearing in mind recent developments in Syria and Iraq, with the prevailing role of non-State actors, she strongly supported such an approach.
Japan’s representative, noting the Rome Statute’s “vertical relationships” between the International Criminal Court and its States parties, said the Statute did not prescribe any obligations regarding adoption of national laws on such crimes or inter-State cooperation. A convention on crimes against humanity would create “horizontal relationships” among States and regulate inter-State cooperation, strengthening the international community’s efforts to prevent such crimes.
Also during today’s meeting, Ghana’s representative introduced a draft resolution on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law (document A/C.6/69/L.7). Adoption of the resolution would ensure the Programme’s successful continuation for present and future generations of lawyers.
Speaking today were representatives of Belarus, Cyprus, Singapore, Ethiopia, Poland, Israel, Romania, Hungary, Sudan, Peru, Germany, Switzerland, Jamaica, New Zealand, United States, Australia, Portugal, China, Chile, Spain, El Salvador, Turkey, and Italy.
The Committee would next meet on Monday, 9 November, at 10 a.m., to continue its consideration of the second cluster of topics from the report of the International Law Commission.
Background
The Sixth Committee (Legal) today heard from the President of the International Court of Justice and continued its deliberations on topics from the second cluster of topics from the report of the International Law Commission. For background see Press Release GA/L/3506.
Statements on Second Cluster
Mr. POPKOV (Belarus) said, in regards to the topic “Identification of customary international law”, that it would be useful to research the formation of such a law at the same time as its identification; understanding its formation would assist in its identification. While he concurred with the Commission that resolutions adopted by international organizations impacted customary international law, he stressed that that body of law was based on State practice. Therefore, review of such texts should be regarded only in that context. Furthermore he held that the practice of non-State actors was not related to the formulation of customary international law.
Noting that another term might be found for “particular customary law”, he appreciated its recognition by the Commission and that it was not exclusively determined by geographical criteria. Furthermore, “particular” (or “local”) custom must be agreed upon in a form acceptable to all concerned States. There were also contradictions in the persistent objector rule for States that objected to the formulation of a specific practice as customary law. The conditions under which a State could be freed of the obligation to observe an established rule of customary law required further study. He also said he looked for information on the termination of customary international law.
Turning to the topic “Crimes against humanity”, he said that, while measures to prevent and punish such crimes would be useful, he was not convinced of the need for a convention on the matter. Among his comments on the draft articles, he pointed out contradictions between draft articles 2 and 3. While the former appropriately considered such crimes to be crimes against international law whether or not committed in time of armed conflict, the latter continued to use terminology (“civilian population”) from international humanitarian law. He said that excluding any persons, including non-civilians, from the draft article, contradicted its purpose.
On the topic “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said there was no doubt that the constituent instruments of international organizations were subject to all the norms of other international treaties. Thus, he looked for further information on the specifics of such treaties and their interpretation, which should consist of a more formalized approach to the interactions of States parties to the constituent instrument. Furthermore, he noted that other entities, such as secretariats and other permanent organs of international organizations also influenced such practice. In addition, the particularities of the practice of international organizations should be addressed in the conclusions rather than in the commentaries.
VASILIKI KRASA (Cyprus), taking up the topic “Identification of customary international law”, said that he had doubts about the relevance of “persistent objector” in the scope of the chapter, given that the chapter focused on the identification rather than the application of customary international law. Moreover, the use of “persistent objection” as a means to avoid customary international law obligations was highly contentious and could lead to the fragmentation of international law. Any right of a State to dissent from a rule of customary international law should be construed to the fullest extent, in order to safeguard the stability, predictability and security that customary international law afforded international relations.
In terms of applicability, he said a State could only be a “persistent objector” and have the benefits of being one up to the point of the formation of the rule and only prior to the point that it solidified into custom. That was consistent with the fact that existing customary law bound new States and that they could not withdraw from custom. Citing several cases decided by the International Court of Justice, he said the Court had acknowledged that the concept of particular or local or regional custom could be resorted to in some instances. The draft conclusion should include an additional clause which could serve as a safeguard for the interests of the dissenting States; namely the State invoking an alleged regional custom should bear the burden of proof for the existence of such a rule.
LIESBETH LIJNZAAD (Netherlands), on the topic “Identification of customary international law” and the question of inaction and silence in the formation of such law, pointed out that “the difficulty with inaction is that it is hard to explain the meaning of silence.” It raised an almost philosophical problem as to motives and presumed that all States’ action (or inaction) was based on rational decision-making. What was essential was that consequences might only attach to the absence of a reaction where one would be expected.
In addition, while she supported the inclusion of the “persistent objector”, she held that once the position of the persistent objector had been obtained through objections made during the formation of a customary rule, and the customary rule had been established, there was no reason to require continuing objections to maintain that state, as currently formulated in draft conclusion 15[16]. Instead, the rule on the persistent objector should be the inverse, i.e., only when there was subsequent practice, or expressions of legal opinions by the persistent objector in support of the “new” rule, and in deviation from its original position as persistent objector, would it lose that position.
Turning to the topic “Crimes against humanity”, she suggested that the problem was not so much about defining such crimes as about establishing mechanisms to address the prevention and punishment of such crimes, particularly in domestic jurisdiction. A treaty would be a welcome instrument in that regard. Also stressing the relationship between a draft convention on the topic and the Rome Statute, she said any subsequent legal instrument on the topic could and should build on the Statute’s existing practice.
It was important, she stressed, to promote inter-State cooperation with respect to prosecution, which required strengthening mutual legal assistance. Her Government, along with Argentina, Belgium and Slovenia, was working towards a new multilateral treaty on mutual legal assistance and extradition for domestic prosecution of the most serious international crimes. At present 48 countries had expressed support for opening negotiations on such a treaty. She would welcome close cooperation between its promoters and the Commission.
On the topic “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” she noted that the conduct of an organ of an international organization might influence the practice of that organization in applying a constituent instrument, especially when that practice had never been challenged by the parties to that instrument. The ultimate result could be an implicit modification of the organization’s constituent instrument.
In that regard she drew attention to the relationship between the organs of an international organization and its member States, and the difficulty that ensued in determining whether a decision interpreting or modifying a constituent instrument was taken by an organ of the organization or by the member States as parties to the constituent instrument. In such situations it might be difficult to establish subsequent practice in the application of the constituent instrument within the meaning of article 31(3)(b) of the Vienna Convention.
RICARDO ALDAY GONZÁLEZ (Mexico), on the topic “Identification of customary international law”, said the Commission and the Special Rapporteur had made great progress in its third report, in particular on identification, as formation of custom was ongoing and flexible. Analysis on the effect of inaction had identified the two-fold characteristic as a practice for creation of a rule and as evidence of opinion juris. The apparent and false contradiction that inaction could be considered as practice was well clarified in the analysis. The assessment of inaction as a subjective or objective element was more complicated and required additional analysis. The report in several sections had indicated that neither treaties nor resolutions of international organizations, nor doctrine or jurisprudence constituted conclusive proof of the existence of rule of customary law. However, careful evaluation of those materials could or could not prove existence of practice.
Turning to the topic of “Crimes against humanity”, he said the prohibition of those crimes was a fundamental rule of international law, of a jus cogens nature, and for which, consequently, there could be no derogation. Work on the matter should support other related work, such as the Rome Statute of the International Criminal Court. He welcomed that the draft articles used the same definition of such crimes as that in the Rome Statute. However, two main aspects considered as not sufficiently defined in the Rome Statute should be clarified in the draft articles. Among them was draft article 3, paragraph 2, which referred to State or organizational policy to commit crimes against humanity.
In that matter, an organization should be “State-like”, he said, adding that that characteristic had been recognized in the draft commentary. He recalled that Nazi policies was “State policy” and as such made the prosecution of perpetrators by the State itself unlikely. Breaking the barriers of State sovereignty would allow prosecution of crimes against humanity, given their severity. However, that would not be the case with respect to the policy of private organizations that did not share the characteristics of a State since the acts of its members were a matter for national tribunals of the State itself.
PANG KHANG CHAU (Singapore), on the topic “Identification of customary international law”, said that the distinction between the practice of States within international organizations and that of the international organization itself, was important; acts of the latter should not generally be assimilated to those of the former. Clarity on the conditions under which inaction could constitute practice was needed. The circumstance and evidence of opinio juris must be compelling if such inaction was to form the basis of customary international law that bound a State.
He urged caution in ascribing significance to the role of resolutions adopted within international organizations and international conferences in the formation or identification of such law. Regarding the “third element” in draft conclusion 16, he stressed that it was unwise to expect total consistency or complete persistency or to adopt a checklist approach.
Turning to the topic “Crimes against humanity”, he pointed out that the study was still in an early stage and would benefit from further consideration. He urged avoiding predetermined results. Any outcome would require further study. Questions around the topic’s interaction with existing legal regimes, for example, required careful consideration.
Turning to the topic “Subsequent agreement and subsequent practice in relation to the interpretation of treaties”, he said that while subsequent practice could influence interpretation of a treaty, the treaty’s wording was the foundation of interpretation. In cases of a constituent instrument of an international organization, he urged avoiding “short cuts” that circumvented amendment mechanisms within that instrument. Indeed, there was a need for robustness and precision in determining conduct that constituted subsequent agreement or subsequent practice, and caution should be used in such identification.
Remarks by President of International Court of Justice
RONNY ABRAHAM, addressing the Sixth Committee for the first time as President of the International Court of Justice, said the Court’s seventieth anniversary in April 2016 would be an occasion to examine its work and to assess, in particular, its role within the United Nations. Since its creation, the Court had developed expertise in various areas of the law and had contributed to the advent of international institutional law. Its advisory opinions in particular had, despite their non-binding nature, significantly contributed to the development of that sphere of law.
The Court’s contribution to the institutional law of the United Nations was threefold, he said. Its jurisprudence had helped to consolidate the Organization’s role and place in the international legal order by clarifying its legal status as an international organization and the scope of powers with which it was entrusted. Its decisions had also shed light, within the institution itself, on the functioning and responsibilities of the Organization’s principal organs and on those functions’ limits. Moreover, the Court had pronounced itself in texts adopted by the General Assembly, thereby strengthening the cooperation in the promotion and development of international law.
He recalled that, within its first few years of activity, the Court had soon declared itself competent to interpret the United Nations Charter, in two advisory proceedings relating to the admission of new States to the Organization. It had also recognized the international legal personality of the United Nations. In its advisory opinion delivered in 1949 concerning Reparation for Injuries Suffered in the Service of the United Nations, the Court had determined that the United Nations “could not carry out the intentions of its founders if it was devoid of international personality”.
Many consequences flowed from the recognition of the Organization’s legal personality, he said. As a subject of international law, it was not only entitled to have rights and privileges, but was also bound by legal obligations incumbent upon it, the Charter as its constitutive instrument, as well as international agreements to which it had become a party. In that connection, the Court had had the opportunity to interpret agreements concluded between the United Nations and its specialized agencies, on the one hand, and Member States, on the other hand.
For instance, he noted that, in its 1989 advisory opinion on the Applicability of Article VI, Section 22 of the Convention on the Privileges and Immunities of the United Nations, the Court had concluded that the privileges and immunities provided for in the Convention applied to every expert performing missions for the Organization, travelling or not, and that the provisions of that section could be invoked against an expert’s State of nationality or residence.
With regard to obligations stemming from recognition of the United Nations international legal personality, he said the Court had affirmed that its organs were bound by judicial decisions, which had binding effect upon them. Detailing various advisory opinions, he specified that the Court had considered that, by concluding a contract of services with a staff member, the Secretary-General engaged the legal responsibility of the Organization as the legal person on whose behalf he was acting.
On the other hand, the Court had also stated, in two advisory proceedings, that the Organization could enjoy implied powers which were necessary to carry out its functions, he said. In the Advisory opinion of 1949 on the question of Reparation for Injuries Suffered in the Service of the United Nations, the Court had found that the Organization had the capacity to seek redress, through an international claim, for damages caused to it and its agents. In its advisory opinion of 1954, relating to the Effect of Awards and Compensation Made by the United Nations Administrative Tribunal, the Court had concluded that the General Assembly had the power to set up a tribunal to adjudicate disputes between the Organization and members of the staff.
The Court’s second field of contribution was to the institutional law of the United Nations, he said. The Court had been given the opportunity, in a few advisory proceedings, to define the framework of the General Assembly’s activities on the basis of the Charter’s provisions. In two advisory proceedings concerning the admission to membership to the Organization, the Court had asserted that the Assembly’s actions were subject to the conditions prescribed by Article 4 of the Charter.
It had held that a Member State called upon to vote on the admission of another State could not make its consent to admission dependent on conditions not expressly stated in that paragraph, he continued. In its Advisory opinion in 1950 on the Competence of the General Assembly for the Admission of a State to the United Nations, the Court had ruled that a State could not be admitted to membership solely based on a decision of the Assembly, without a prior recommendation of the Security Council, recalling the necessity of preserving the balance of powers set out by the Charter.
On the scope of the Assembly’s power to request advisory opinions, he said that, in its Advisory opinion of 1950 on the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (first phase), the Court had refused to conclude that the Assembly had exceeded its powers by requesting an opinion on the observance of human rights in certain countries — a matter which, some States had argued, fell within the domestic jurisdiction of the States concerned. The Court had found that the Assembly, in its resolution, had justified its adoption by reference to Article 55 of the Charter, which indicated the Organization’s role in promoting human rights and fundamental freedoms.
Furthermore, he noted that the Court had also found, in another advisory opinion, that the power of the General Assembly to request an advisory opinion could be exercised in parallel with the right conferred upon States Parties to interpret the Convention on the Prevention and Punishment of the Crime of Genocide. It had also stressed that body’s important role in the elaboration and adoption of that treaty. In a separate advisory opinion, the Court had confirmed that the General Assembly could put questions to the Court in fields in which it had only issued recommendations.
Turning to the role played by the Court in clarifying the respective powers of the General Assembly and the Security Council, he recalled that, in the case relating to Certain Expenses of the United Nations, on which it had handed down the Advisory opinion in 1962, the Court had determined that expenditures authorized in certain Assembly resolutions in relation to United Nations operations in the Congo and in the Middle East could be considered “expenses of the Organization”, within the meaning of Article 17, paragraph 2, of the Charter. The Court had held that such expenses could be authorized by Assembly resolutions, even though they had sought to finance operations relating to the maintenance of international peace and security. In doing so, the Court had stated that the Security Council had primary, rather than exclusive, jurisdiction, on all matters relating to international peace and security.
He noted that, more recently, the Court had had the opportunity to reiterate that finding in its opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, which had been delivered in 2004. The Court had recalled that, although the Security Council had primary responsibility for the maintenance of international peace and security under Article 24 of the Charter, its responsibility was not exclusive. The General Assembly also had certain powers, namely the power to recommend measures aimed at ensuring the peaceful resolution of various situations pursuant to Article 14 of the Charter. The Court had confirmed that those two bodies were entrusted with complementary functions in the maintenance of international peace and security.
Turning to how the Court had taken into account the work of the Assembly, he said that, despite the lack of binding effect of the Assembly’s resolutions, those resolutions had a considerable importance, in particular when they had been adopted with a large majority. The Court did not hesitate to rely, in its judgments and advisory opinions, on such resolutions when they were relevant to the analysis of the applicable law. That reliance helped to clarify the rules and principles laid down in those resolutions and sometimes, to identify an opinio juris on various points of the law.
In the Court’s opinion, rendered in 1971, in the case Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), he said the Court had largely based its reasoning on General Assembly resolution 1514. That resolution, which proclaimed the right to self-determination of all peoples, was viewed by the Court as an important step in the development of international law with respect to non-self-governing territories and the application of the principle of self-determination to those territories.
Reference to General Assembly resolutions had been made in a number of other judgments and advisory opinions, he said. The Court had asserted further that, although resolutions of the Assembly were, in principle, not binding, they could have a “normative value”. The resolutions could, he quoted, “provide evidence important for establishing the existence of a rule or the emergence of an opinio juris”. It had also considered that “series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule”.
He pointed out that, while the Court had taken into account resolutions from the Organization’s principal organs, the judgments and advisory opinions of the Court were, conversely, widely cited in resolutions from the Security Council and the General Assembly. Underscoring the clear link between the work of the Sixth Committee and that of the Court, he said the dialogue established between them had helped to identify certain priorities in the United Nations legal roadmap and to reaffirm the Court’s important role in the peaceful settlement of disputes. Acknowledging the ongoing support of Member States, he expressed gratitude for the trust they placed in the Court. With 12 pending cases before it, the Court would continue to deal with important legal issues. It had never been this active since its creation seventy years ago, he said, welcoming States’ growing willingness to resort to peaceful means to resolve their disputes.
Following his presentation, the President took questions from Sixth Committee delegates.
Responding to a question from the representative of Venezuela regarding limits on the powers of the Security Council and whether there was an organ that could hold the Council accountable, he said the Council’s powers were defined by the Charter. Interpretation of the Charter fell within the Court’s competence and, if requested to provide an interpretation, it would. However, he could not anticipate what the position of the Court would be.
In response to a question from Peru’s representative regarding the main challenges for the Court in providing advisory opinions on sensitive political topics, he said the first step was to determine whether the Court was competent, under the Charter, to address the issue in question. It then would ask itself whether it should respond to the request. Still, he noted that, thus far, the Court had never denied a request for an advisory opinion that met all requirements. He added that the Court could adapt its priorities according to the urgency of the situation for which a request had been made in order to ensure that the advisory opinion would be as useful as possible.
On a question about outreach, particularly to developing countries, from the representative of Ethiopia, he emphasized the importance of always raising the profile of the Court. Its upcoming seventieth anniversary would offer the opportunity to conduct events highlighting its role. He stressed that it was “incumbent on all of us” — States, the Sixth Committee and others — to make the public aware of the International Court of Justice and its usefulness, noting that the media were generally more interested in other organs and jurisdictions.
The representatives of France and Morocco asked about the Court’s relationship with the International Law Commission. Responding, Mr. ABRAMS pointed out that it was clear from reading the Court’s judgments that it referred to texts adopted by the Commission. However, the Court had to distinguish between texts on international customary law, which it could use, and those on the development of international law. The latter were sometimes taken into account but did not form the basis of judgments. He noted further that, while the Court would be hesitant to consider draft articles that were still being formulated, everything depended on the situation.
Statements on Second Cluster
RITI PATHAK (India) said that customary international law consisted of the “settled practice” of States and the belief that such practice was legally binding. Stressing the importance of both those elements, she said that developing States should be encouraged and assisted in submitting their State practice. She urged the Commission to engage with regional organizations, as many developing and least developed countries did not have the capacity to explore the topic. In that regard, the Asian-African Legal Consultative Organization had established an informal expert group on customary international law.
Turning to the Special Rapporteur’s proposal that the opinions of law officers accepted and acted upon by Governments be taken into account as a form of evidence accepted as law (opinio juris), she pointed out that it was difficult to identify those as many countries did not publish the legal opinions of their law officers. Regarding the role of treaties and resolutions, she said that not all treaty provisions were equally relevant and that only those of a “fundamentally norm-creating character” could generate rules of customary international law. She also held that the judicial decisions and writings of national courts should be considered alongside those of the World Court and other courts and tribunals.
Turning to “Crimes against humanity”, she said that in view of existing international legal regimes and mechanisms dealing with the subject, the topic required in-depth study and thorough discussion in the Commission, so that the proposed obligations would not conflict with existing treaty obligations or duplicate existing regimes.
ANNA WYROZUMSKA (Poland), on the topic “Identification of customary international law”, said that, unfortunately, such law was sometimes ignored or abused. She voiced support for the two-constituent-elements approach, as both elements were interrelated but could not be mixed. In asserting and applying international law, the existence of both had to be proven. The evolution of rules of customary law, or “custom over time”, should be kept in mind; it was an issue of both theoretical and practical importance, as seen in the jurisprudence of international investment tribunals. The Commission should analyse under what circumstances it was possible to withdraw from a binding rule of customary international law, and how to evaluate whether such a situation constituted a violation or marked a new practice that would lead to a new custom.
Turning to “Crimes against humanity”, she said she supported the use by the Commission of the Rome Statute’s definition of such crimes. A victim-oriented approach, with particular regard to children, among other vulnerable persons, should be reflected in articles 1 and 2 of the draft.
With regard to the topic “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, she said she fully endorsed the draft conclusion that referred to the constituent instruments of international organizations, as it reflected article 5 of the Vienna Convention on the Law of Treaties and properly differentiated between obligatory and supplementary means of interpretation.
SARAH WEISS MA’UDI (Israel) said, on the topic “Identification of customary international law, that her country favoured practical, simple solutions that would help identify rules of such law. General practice and opinio juris should be verified separately before determining that a rule of customary international law actually existed. In addition, the presence of both elements, not their chronological order, was important; different evidence was required for each element. The conduct of non-State actors was not “practice” for the purposes of customary international law. The establishment of custom should be State-driven and exclude non-State actors. If the door to non-State actors was opened, that might lead to polarization and politicization. The international community might be forced to decide which non-State actors were legitimate sources of custom and which ones were not.
She went on to say that she concurred with draft conclusion 11, which stated that inaction might constitute a type of State practice. Silence should be considered acquiescence when silence or inaction was intentional. Resolutions adopted at international conferences constituted “soft law” and tended not to reflect binding customary international law. Great caution was recommended on that point. Providing for particular custom, as done in draft conclusion 15, was liable to cause confusion and discrepancies between States in an “already disjointed” international legal system. Concurring with draft conclusion 16 that a State that persistently objected to a new rule of customary international law should not be bound by it, she said that such a principle would safeguard the autonomy of States and ensure that certain States did not use customary international law to the disadvantage of others.
Turning to the topic “Crimes against humanity,” she welcomed the codification on the draft articles, considering that the matter was of particular concern given the history of the Jewish people and the genocide perpetrated against them under the Nazi regime. Her Government was currently reviewing the compatibility of Israeli criminal law with definitions of serious international crimes, and in that regard it was considering domestic legislation that would explicitly address such crimes. The entire international community would benefit from a comprehensive and global codification of crimes against humanity. Such codification, including the list of crimes and their definition, should reflect customary international law and the widest possible consensus amongst States. Furthermore, such codification should cover crimes against humanity by both States and non-State actors, and address specific issues relating to the role of non-State actors in the commission of crimes against humanity.
ION GÂLEA (Romania), speaking on the “Identification of customary international law”, said inaction could be deemed as practice as a constituent element of customary international law, but only where inaction resulted from the consciousness of a duty not to act. “Inaction must not be a simple omission,” he stated. Inaction must also be studied in relation to the relevant rule or particular right invoked. The formula, “provided that the circumstances call for some reaction”, needed further clarification, he said, welcoming the suggestion made to specify criteria or circumstances under which inaction was relevant. As far as international treaties were concerned, multilateral ones had the main significance, while the impact of bilateral treaties — although not excluded from the draft conclusions — should be approached with caution. In addition, he said, the inclusion of the persistent objector rule was correct and reflected a largely accepted view.
On “Crimes against humanity”, he said that his country’s position on the adoption of a treaty for the prevention and punishment of such crimes would be communicated at a later stage, as implications of such a decision needed further consideration. He concurred with the Commission that the qualification of a crime as a crime against humanity should not be conditional upon the existence of an armed conflict, since the conduct constituting that type of crime could occur in times of peace as well. With respect to draft article 3, he fully supported the approach of the Commission of not departing from the provisions of article 7 of the Rome Statute, which enjoyed broad consensus.
Turning to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said the substantive difference between paragraphs 2 and 3 was “very thin”. He agreed that the subsequent practice of States might arise from their reactions to the practice of an international organization. Similarly, he said he agreed with the conclusion, in paragraph 34 of the commentaries, that the “own practice” of the organizations was relevant for the determination of the object and purpose of the treaty, under article 31(1). However, the reaction of States to such “own practice” mattered; he therefore suggested that the relation between paragraphs 2 and 3, on the one side, and draft conclusion 9, paragraph 2, referring to silence that may constitute acceptance, on the other side, should be further explored.
RITA SILEK (Hungary), on the topic “Protection of the atmosphere”, said that climate and air quality protection was a high priority for her Government. As a State committed to environmental protection, Hungary had been a party to various conventions regarding such efforts. However, the Commission’s commentary on the scope of the draft guidelines noted that black carbon and tropospheric ozone were not regulated pollutants and that the main sources of transboundary atmospheric pollution were sulphur dioxide and nitrogen oxides. In Hungary and Europe, it was particular matter (and black carbon as part of it) and tropospheric ozone that caused the most health problems. She urged that such pollutants be included in the scope of the draft guidelines. She also noted that combining three different subject matters — climate change, air quality and ozone depletion — created problems even at the definition of certain terms. A more committed implementation of existing conventions could prove more effective in the protection of atmosphere than a combined regulatory framework.
Turning to the topic “Crimes against humanity”, she noted that Hungary was a party to the Rome Statue of the International Criminal Court and was deeply committed to ending impunity for major international crimes. States had the primary responsibility for the prevention and punishment of crimes against humanity. To that end, they needed to step up efforts to reinforce their legal regimes and engage in inter-State cooperation. Although she voiced support for the Commission’s work on the elaboration of a new convention on crimes against humanity, she stressed that such a process be taken with caution to avoid conflict with other existing legal regimes, especially the Rome Statute.
IDREES MOHAMMED ALI MOHAMMED SAEED (Sudan), on “Identification of customary international law”, he emphasized the importance of States’ practice and expressed his support for the two-element approach. He noted the importance of examining the essential relationship between the two elements and the ways in which international law stemmed from them. In that light, each element should be evaluated separately in defining the principles of customary international law. On inaction, he said that it was difficult, in practice, to determine whether inaction might be evidence of tacit acceptance of law. Also, the draft conclusion on the role of international tribunals in identifying customary international law required further consideration, he said, stressing the primacy of the decisions and judgments of the International Court of Justice.
Other international jurisdictions should not be placed on an equal footing, he went on to say. Furthermore, the role of international organizations could not be seen as equal to the role of States. In that regard, attention should be paid to the most representative body within an organization, and consideration should be limited to intergovernmental organizations. How a resolution had been adopted should also be taken into account. Noting the need for further clarification of draft conclusion 15, on particular custom, and draft conclusion 16, on the persistent objector, he asked for examples to establish the necessary conditions for a State to be considered a persistent objector.
ANGEL HORNA (Peru), on the topic “Identification of customary international law”, said that in regards to inaction as practice and/or evidence of acceptance as law, there were difficulties in qualifying inaction under international law. Any sufficient time period would run the risk of always being arbitrary. Expressing agreement with the drafting committee, he said it could not be expected that States react in every instance to the practice of every State. A careful assessment was needed prior to determining that such inaction or omission had legal consequences.
Turning to the relevance of treaties in identifying customary international law, he said the Special Rapporteur had made reference to the development of the concept of exclusive economic zone during the Third United Nations Conference on the Law of the Sea. That was an important example of how treaties could crystallize customary rules that could be emerging. The origin of the concept had been indicated in the unilateral declarations that had begun in 1947 subsequently complemented by a tripartite declaration in 1952. Some had referred to those declarations as the most visible example of “Latin American regionalism”. It was important for the Special Rapporteur to consider including those elements, as well as others he further described, in part 5 of the draft conclusions. He expressed hope for a possible preparation of a practical guide which could help professionals in identifying customary international law.
On “Crimes against humanity”, he welcomed the Special Rapporteur’s work, whose objective was a possible future convention on the matter. There was a legal framework from those crimes and it would be important to emphasize that those draft articles were not seeking to complement or replace that framework, but supplement them. An example was the definition already reflected in article 7 of the Rome Statute. He said he anticipated that the second report, to be submitted in 2016, would include the obligation of States to adopt measures to ensure that crimes against humanity represented a crime in accordance with national legislation and obligations.
MICHAEL KOCH (Germany) said that, with regard to the “Identification of customary international law”, he supported the clarification that in the course of an assessment of evidence, the existence of each of the two constituent elements (general practice and opinio juris) must be ascertained separately, even in cases where the same fact or action provided evidence of both components. He also appreciated the approach that unequivocally confirmed that States were and remained the primary subjects of international law while acknowledging the contribution of actions and practices by international organizations to the development of international customary law. However, the absence of guidance on cases in which the conduct of non-State actors may be qualified as being relevant when assessing the practice of States and international organizations was regrettable. In addition, it should be noted that the fact that different views expressed within pluralistic societies should not automatically diminish the influence of the practice and opinio juris.
Turning to “Crimes against humanity”, he said that his country attached great importance to international criminal law and underlined that a possible convention would not only complement treaty law on the core crimes, but might also foster inter-State cooperation on the investigation, prosecution and punishment of such criminal acts, therefore providing further impetus to ending impunity for atrocities. It was highly pertinent to ensure that future developments in the case law of international courts and tribunals played an important role in interpreting a possible future convention in order to avoid or minimize the danger of diverting implementation. A convention should include an obligation to duly take into account such case law when interpreting its provisions, with the objective of a uniform criminalization of certain actions.
Turning to the issue of “Subsequent agreements and subsequent practices in relation to the interpretation of treaties”, he voiced his agreement that an international organization’s practice was particularly relevant for determining the object and purpose of its constituent treaty. It would be beneficial that the Commission provided examples of cases in which the rules of an international organization contained lex specialis provisions on the role of subsequent agreements and practice for the interpretation of its constituent treaty. The rules of the European Union could serve as such example.
Ms. WANNER (Switzerland), in regards to “Crimes against Humanity”, said it was in favour of a “concise convention that is as long as necessary and as short as possible”. She also voiced support for the definition of crimes, which in draft article 3 was verbatim of article 7 of the Rome Statute, stressing that competing or even contradicting definitions would cause problems on both international and national platforms. The existing standard of prevention, protection and punishment, supported by most States, could not be lowered under any circumstance.
She also stressed that the future draft articles should include, among others, provisions on mutual legal assistance, requiring States to cooperate while respecting existing constraints in national systems, as well as the irrelevance of the official position. It was hoped that such a convention would help the international community to ensure that persons who had committed crimes against humanity were prosecuted under national legislation, thereby strengthening complementarity with the Rome Statue system.
Welcoming all the efforts to strengthen dialogue between the Sixth Committee and the International Law Commission, she pointed out that the Commission’s activities must be kept entirely independent of the New York-based Committee. The diversity of legal cultures between the two bodies was the best safeguard against any risk of their becoming homogenized. Taking note of the recommendation to hold a possible interim session in New York, she said that, while not opposed to such a session, it was necessary to examine the option in depth. On no account, however, should it become normal practice.
KATHY-ANN BROWN (Jamaica), in regard to the text conclusions on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, drew the Committee’s attention not to national jurisprudence in her region, but to regional jurisprudence. The Caribbean Court of Justice had been conferred by the Caribbean Community (CARICOM) member States in the 2003 Revised Treaty of Chaguaramas, a compulsory and exclusive jurisdiction in the case of disputes concerning interpretation and application of said Treaty. Citing two cases as examples, she said institutional practice was important in facilitating the “metamorphous, so to speak”, of fragile institutional frameworks into strong vibrant integration entities. In the desire to achieve broad consensus in the treaty-making process, many details were left unscripted; institutional practice was therefore mechanism for clarifying ambiguous texts.
Looking ahead to the Committee’s session on the third cluster of topics, which she would not be able to attend, she noted the presence of relevant national jurisprudence on the topic of “Immunity of State officials from foreign criminal jurisdiction”, as well as extensive regional discussions regarding the “Provisional application of treaties”. In the CARICOM region, countries that had yet to ratify treaties had made extensive use of a facility for provisional application. The Commission should pay due regard to practices in all regions and promote an exchange of different legal views and approaches to the issues addressed in its work programme.
SCOTT BICKERTON (New Zealand) welcomed the focus in the topic “Crimes against humanity” on both prevention and punishment, as stated in draft articles 1 and 4, as well as the definition of such crimes found in draft article 3; it did not try to elaborate a new definition different from that in the Rome Statute. Such crimes had been criminalized in New Zealand law, which had a comprehensive framework for the provision of assistance in criminal cases and for cooperating with other countries in extradition for serious crimes.
Turning to the topic “Subsequent agreements and subsequent practice”, he said he supported paragraph 1 of draft conclusion 11 on the applicability of articles 31 and 32 of the Vienna Convention to the constituent instruments of international organizations and said that such organizations should take a “flexible approach” to their founding instruments. The draft conclusions should strike a balance between the ongoing and agreed mandate of an international organization and the collective interpretation of the provisions of an organization’s constituent instrument. He welcomed the findings in the report that decisions of a plenary body, whether or not supported by all States within that body, could provide the position or practice of member States in the application of the treaty.
TODD BUCHWALD (United States) said the Special Rapporteur and Drafting Committee had successfully addressed many aspects of the topic “Identification of customary international law”. However, concerns remained, including the role of the practice of international organizations in contributing to the formation or expression of customary international law. Case law had not recognized that the actions of international organizations contributed directly to the formation of customary rules. Therefore, the treatment of the role of international organizations in paragraph 2 of draft conclusion 4 needed to be reconceived in order to avoid misleading users of the final product. In addition, the role of international organizations needed to be considered separately from States. By addressing international organizations separately, the Commission would be able to recognize and address that they included a great variety of entities, with different roles, competences and practices.
Turning to “Crimes against humanity”, he said the widespread adoption of certain multilateral treaties regarding serious international crimes such as the 1948 Convention on the Prevention and Punishment of the Crime of Genocide had been a valuable contribution to international law. Careful consideration and discussion of draft articles for a convention on the prevention and punishment of such crimes could also be valuable. The topic’s importance, however, was matched by the difficulty of some of the legal issues that it implicated.
On “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said he agreed with the analysis of draft conclusion 11, in particular that the rules of treaty interpretation reflected in articles 31 and 32 of the Vienna Convention on the Law of Treaties applied to the constituent instruments of international organizations. However, he expressed doubts about draft conclusion 11, paragraph 3 as an international organization itself was not a party to the constituent instrument, and its practice could not contribute to establishing the agreement of practice.
BILL CAMPBELL (Australia) welcomed the progress made on the topic “Identification of customary international law”. Taking a consistent and principled approach required the consideration of two elements of customary international law; namely, State practice and opinio juris. He voiced support for the idea that each element should be supported by separate evidence in order to avoid conflating the requirements. Caution should be exercised before assuming that a State’s failure to react to a given practice constituted evidence of opinio juris. Inaction could serve as evidence of opinio juris only when a State signalled its acceptance of a particular practice as lawful. To that end, the Commission’s efforts to carefully delineate those circumstances had been constructive, he said, supporting drafting conclusion 10, paragraph 3.
It was first and foremost the practice and opinio juris of States that resulted in the formation of customary international law, he continued. A cautious approach, to that end, needed to be taken in drawing conclusion from the practice of other actors. On the other hand, practice of international organizations should not be assimilated to that of the States themselves, although it was possible that the practice of international organizations might contribute to the formation of custom “in certain cases”. However, that should be approached with caution. While acknowledging the valuable work of other non-State actors in operating as a catalyst for State action, he said it did not contribute to the formation of customary international law.
Turning to the matter of “Subsequent agreement and subsequent practice in relation to the interpretation of treaties”, he said the International Court of Justice had recognized that the constituent instruments of international organizations were treaties of a particular type. They created new subjects of international law, endowed with a degree of autonomy and entrusted by the States Parties with the task of realizing particular common goals. Such treaties might give rise to special kinds of interpretative questions relating to the jurisdiction of the organizations that they established. At the same time, the Court had recognized that such instruments were first and foremost multilateral treaties, and they were subject to the well-established principles of treaty interpretation. The starting point for interpreting must be the generally applicable rules of treaty interpretation. In that context, article 31 of the Vienna Convention, dealing with the subsequent agreement and subsequent practice, was directed at the practice of the parties to a treaty.
RITA FADEN (Portugal), on the topic “Identification of customary law”, said a set of practical and simple conclusions, with commentary, seemed to be the right way to proceed, although some draft conclusions would benefit from additional specifics. Referring to various parts of the draft conclusions, she said further exploration of the respective weight of general practice and opinio juris was required. It would be useful to detail in which circumstances resolutions of international organizations and conferences may be evidence of customary international law. The fact that “persistent objector” status was not compatible with norms that had a jus cogens character should be specified; it would be better for particular custom to be specified as regional, local or particular custom. On balance, the draft conclusions gave more prominence to “evidence” than to “formation”, which should be given more emphasis.
She then turned to “Crimes against humanity”, stating that some valid points had been presented regarding the possibility of drafting a convention on crimes against humanity; however, study on that topic should proceed with caution and take into account the existing legal framework for such crimes. Whatever was developed should complement, not conflict with, the Rome Statues and other regimes in place. Use in the draft articles of the Rome Statute’s definition of crimes against humanity — which had been accepted by more than 120 countries — was welcome.
With regard to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, she said further consideration should be given to the distinction between subsequent and established practice. A connection between those two concepts was revealed by the fact that established practice could influence the preconditions for, and the significance of, subsequent practice in the interpretation of the constituent instruments of international organizations.
XU HONG (China), on the topic “Crimes against humanity”, said the codification of the related draft articles should be based on a thorough review of States’ practice; the articles adopted by the Commission had relied more on the practice of international judicial organs. As one example, he pointed out that draft article 3, in establishing the definition of such crimes, had adopted verbatim article 7 of the Rome Statute, effectively regarding it as universally accepted. The Commission should review the positions and practice of States more comprehensively to lay down a sound basis for that definition. Furthermore, with respect to listing specific crimes, full consideration should be given to differences among national legal systems, he said, also questioning whether the obligation of States to prevent such crimes was too broad as drafted.
Turning to the topic “Identification of customary international law”, he called attention to the contribution made by the Asian-African Legal Consultative Organization to the Commission’s consideration. In determining whether a treaty provision reflected a rule of that law, the criteria of objectivity and impartiality should be applied and the investigation should be based strictly on general practice and opinio juris. Furthermore, a comprehensive assessment should be made of the supplementary role of judicial rulings and writings of States when identifying such rules, without focusing on decisions from just a few jurisdictions.
Commenting on “Immunity of State officials from foreign criminal jurisdiction”, he endorsed the provision of draft article 6 on the scope of immunity ratione materiae. He also concurred with the provisions in subparagraph (f) of draft article 2, on the meaning of an “`act performed in an official capacity’”, but clarified his understanding of some of its terms. In addition, the only yardstick determining whether acts of State officials enjoyed immunity ratione materiae should rely on whether such acts were “performed in an official capacity”.
However, he noted that the reports of the Special Rapporteur and the Commission referenced that ultra vires acts, acts constituting serious international crimes, and acta jure gestionis, or acts performed in an official capacity but exclusively for personal benefit, did not qualify. That view was not in line with affirmative international law and was even in breach of relevant rules. He also suggested the Commission might consider making the clarification in the draft article or its commentary that immunity rules were procedural and did not pertain to substantive rules of international law that dealt with the legality of acts or the issue of accountability.
Addressing the topic “Protection of the environment in relation to armed conflicts”, he said the Commission should distinguish between rules applicable to international armed conflicts and those applicable to non-international armed conflicts. Given the scarcity of international rules directly relevant to the latter and the difficulties involved in obtaining information on relevant practice, it was a challenging task to codify rules for the protection of the environment in that context. Therefore, he suggested that the Commission consider limiting the scope of the draft principles to international armed conflicts.
ANDREJA METELKO-ZGOMBIĆ (Croatia), on “Crimes against humanity”, said that one of the Commission’s most important tasks was to clearly identify and precisely define the legal notion and scope of the topic. In that effort, it should draw to the greatest extent possible on the existing legal framework and make a clear distinction between core international crimes, in particular crimes against humanity, and war crimes. Such a contribution was a necessary precondition for solid codification of generally accepted developments in international humanitarian, international criminal and international human rights law. In that context, there was no need for the specific reference to armed conflict in draft article 2, the omission of which would accentuate the distinction between crimes against humanity, which could be committed within or without armed conflict, and war crimes, which were inseparably connected to armed conflict.
Noting the reference to specific elements that rendered crimes against humanity different from other core international crimes, among them “widespread or systematic attack”; “directed against any civilian population”; “with knowledge of the attack”, she drew attention to the reference to “a State or organizational policy” included in draft article 3. In that regard, it was important to clearly confirm that such reference included the conduct of non-State actors. Thus the words “organizational policy” encompassed policy or actions of any organization or group with the capacity and resources to plan and carry out a widespread and systematic attack, which might or might not be affiliated with a Government. By unambiguously extending the scope of the draft articles to non-State actors, the Commission would uphold the basic principles of the notion of crimes against humanity, namely the fundamental understanding that certain rules representing basic humanity should be respected in all situations at all times by all. Bearing in mind recent developments in Syria and Iraq, with the prevailing role of non-State actors, she strongly supported such an approach.
CLAUDIO TRONCOSO (Chile), addressing the topic “Identification of customary international law”, said the change of the topic’s name from “formation and evidence of customary international law” should not affect its focus, as it was vitally important to continue to discuss the formation of customary rules. The reference in draft conclusion 13 to resolutions adopted by international organizations and conferences was welcome. Such resolutions might be evidence of customary international law, and resolutions of the General Assembly should be given special mention. With regard to inaction, comments on paragraph 3 of draft conclusion 11 should be expanded. In international law, where the will of States played a central role, silence did not generally imply consent. Therefore, for inaction to be binding, its scope had to be clearly limited to cases in which a reaction by one subject to the conduct of another was desirable, but had failed to occur.
With regard to “Crimes against humanity”, he said that the obligation of States to prevent and punish such crimes was part of customary international law and the prohibition of such crimes a peremptory norm. That same obligation was also included in the Rome Statute. However, unlike war crimes and genocide, there was no international treaty that specifically obliged States individually to prevent and punish crimes against humanity. It was essential for such a treaty to be established “so that we do not again have to bemoan the fact that innocent people fall victim to the most abhorrent behaviour known to humanity”, he stated.
Turning to the topic “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said the interpretation of a treaty through subsequent agreement or subsequent practice was a particular situation of strict law that referred only to the interpretation of treaties. A treaty could not be modified or amended by mere conduct. In view of the importance of the topic, his delegation would be expressing its views on all draft conclusions once they had been fully adopted by the International Law Commission.
MARÍA PALACIOS PALACIOS (Spain), on the topic “Identification of customary international law”, considered that the exclusion of the conduct by non-State actors from the consideration of practice for the identification of customary law was too strict. She called for a much more nuanced approach reflecting those actors’ role in the process of determining the existing law. It would be interesting to consider inaction not only as evidence of opinio juris, but also as evidence of the dissolution of a previous opinio juris, she added. Indeed, when a conduct in principle against customary law did not prompt reaction from those who could invoke the violated rule, one could infer that its acceptance as law had diminished. When such inaction continued, one could argue that opinio juris had ceased to exist.
Concerning “Crimes against humanity”, she considered that the content of draft article 1 that stated, “The present draft articles apply to the prevention and punishment of crimes against humanity”, could be suppressed, as its wording was not fully satisfactory. It should indeed be stated that the draft articles “concern” the prevention and punishment of crimes against humanity, rather than “apply”.
Turning to the topic “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, in particular draft conclusion 11 on “constituent instruments of international organizations”, she expressed the view that a mention to the practice of “member States” should be included. Also, it did not seem suitable to speak of “subsequent practice under article 32” of the Vienna Convention, since that specific article made no reference to any kind of practice. Lastly, the object of paragraph 2 should better reflect its content.
MARIA DEL PILAR ESCOBAR (El Salvador), speaking on the “Identification of international customary law”, said that draft article 3 should not be based on evidentiary access relating to the two elements. Instead, the title should be changed to something along the lines of “means to assessing the two elements”. Both requirements for identifying international customary law should be clarified in future comments and other limiting criteria should be added, such as requiring knowledge of the practice. Regarding draft conclusion 15, on the persistent objector, she said that the necessary prudence should be maintained so as not to confuse the persistent objector with the violation of other norms of customary international law.
Turning to “Crimes against humanity”, she said it was important to indicate that such crimes could be committed in peacetime or wartime. She also said that, while there must be consistency with existing treaties, it was important not to simply repeat their provisions. As for the future work of the Commission, she suggested that, in addition to the obligation to prevent and sanction such crimes, there should also be an obligation to provide reparations.
On “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, she said she was pleased that special attention had been given to the constituent instruments of international organizations. Unlike States, they were governed by the specialty principle. Although in agreement with the content of draft 11, she said it was too general. Among other aspects that could still be examined, it would be useful to analyse the attribution of authorship for elements that would give rise to general rules. Draft conclusions would also be helpful on actions that took place at different levels of an international organization, including the actions of organs and officers of an organization.
İPEK ZEYTINOĞLU ÖZKAN (Turkey), with regard to the topic “Identification of customary international law”, said she agreed that conduct by other non-State actors was not practice for formation or identification of international law. Evidence ascertaining the formation of a rule of international customary law should be carefully evaluated through concrete elements. Therefore, the circumstances under which inaction would be seen as relevant should be further examined. Continuing, she said she could not agree with the view that the geographical distribution of the parties to a treaty could serve as evidence of the general character of practice, as such approach would restrict the question to a sole criterion.
Concerning the issue of “Crimes against humanity”, she took note of the report of the Special Rapporteur, but said she would reserve comments on a number of issues, including with regard to provisions defining the notion of crimes against humanity and the inclusion of war crimes and the crime of genocide.
ANDREA TIRITICCO (Italy), on the topic “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, expressed appreciation for the choice to focus on the interpretation of treaties that were the constituent instruments of international organizations. He underlined the merits of having separate paragraphs 2 and 3, respectively referring to the practice of member States within organs of an organization and to the practice of the organization as such. He also expressed support for paragraph 4 as a safeguard clause with respect to specific “relevant rules” of interpretation that could be contained in a constituent instrument.
Moving to the topic “Protection of the environment in relation to armed conflicts”, he welcomed efforts made to identify the existing rules of international humanitarian law applicable to the protection of the environment and underlined the importance of also studying the applicability of international environmental law in relation to armed conflicts. Further study was encouraged on the interrelations between international environmental law and international humanitarian law, international human rights law and the right to health in armed conflicts. He then expressed support for the elaboration of some guiding specifications concerning the conditions under which the environment could become a military objective. Additional reference should be made to the prohibition of hostile environmental modification techniques. As well, areas of major ecological importance should also be referred to as areas of cultural importance.
Addressing the topic “Immunity of State officials from foreign criminal jurisdiction”, he reiterated the importance of a comprehensive and in-depth analysis of that topic, which touched upon several issues of critical relevance in current State and judicial practice. He also welcomed the view that the definition of an “act performed in an official capacity” provided in draft article 2(f) did not coincide with that of acta jure imperii. In addition, the Special Rapporteur had referred to the concept of “elements of governmental authority” elaborated by the Commission, a stance that he welcomed, he said, adding that he appreciated the inclusion of the exercise of police powers and activities of the armed forces within the notion of exercise of “governmental, or State, authority” for the purposes of determining the application of immunity ratione materiae.
TOMOYUKI HANAMI (Japan) said there was a practical difficulty in differentiating inaction from other means of non-action for the purpose of identifying customary international law. While inaction could serve as evidence of opinio juris when the circumstances called for some reaction, there was no clear benchmark to identify such circumstances. On the persistent objector rule, he said it raised such questions as whether the existence of the persistent objector thwarted the establishment of the rule in question as customary international law, or simply hampered application of the customary rule to the persistent objector. Furthermore, as the Commission had noted, resolutions adopted by international organizations might provide evidence for establishing the existence and content of a rule of customary international law. However, the evidentiary value of such resolutions should be dependent on other corroborating evidence of general practice and opinio juris.
Turning to “Crimes against humanity”, he said that, while the Rome Statute regulated “vertical relationships” between the International Criminal Court and its States Parties, it did not prescribe any obligations regarding adoption of national laws on such crimes or inter-State cooperation. The current work would create “horizontal relationships” among States and regulate inter-State cooperation, strengthening the international community’s efforts to prevent those crimes. However, the current work should avoid any legal conflicts with the obligations of States arising under the constituent instruments of international courts or tribunals, including the Criminal Court.