As International Law Commission Report Review Continues, Sixth Committee Takes up Third, Final Cluster of Issues
Delegates Conclude Second Cluster Topics, Urging Further Study on International Cooperation for Crimes against Humanity
Following the Sixth Committee’s (Legal) concluding deliberations on the second cluster of topics from the annual report of the International Law Commission, the Chairman of that body introduced topics from the third and final cluster, before delegates embarked on their debate of those matters.
Narinder Singh, summarizing the Commission’s debates on the third cluster’s topics, noted wide agreement on the matter “Protection of the environment in relation to armed conflicts”, with Commission members’ discussions focused on legal measures to be taken to protect the environment during armed conflict. While it was agreed that the topic should cover both international and non-international conflict, also stressed was the need for further research on the practice of non-State actors. The Commission anticipated reviewing draft texts on the matter at its sixty-eighth session in 2016.
On the cluster’s second topic, “Immunity of State officials from foreign criminal jurisdiction”, he said debate had revolved around a number of central points, among them the definition of “an act performed in an official capacity”. That definition was the key that distinguished conduct based immunity ratione materiae. The definition proposed by the Special Rapporteur contained three elements, among them, the link between the act and the criminal nature of the act.
Regarding “Provisional application of treaties”, the final topic of the cluster, Mr. Singh said that the Special Rapporteur’s report had continued analysis of State practice and had considered the relationship of provisional application to provisions of the 1969 Vienna Convention on the Law of Treaties, among other matters. There was support for preparation of draft guidelines to provide States and international organizations with a practical tool, with some Commission members expressing a preference for presenting those guidelines as draft conclusions.
In the brief ensuing debate before the meeting was adjourned, Singapore’s representative said the most productive approach to the topic “Protection of the environment in relation to armed conflicts” would be to focus on identifying how existing international humanitarian law related to the environment, rather than introducing principles of international environmental law or human rights law, which complicated the issue. In addition, expressing agreement with the Special Rapporteur, she said it was not the Commission’s task to revise the law of armed conflict.
Prior to taking up the third cluster, delegates concluded their consideration on second cluster issues, with many speakers embracing the notion of a legal framework for international cooperation in preventing and prosecuting crimes against humanity.
The representative of South Africa said that the best way to fight crimes against humanity was through domestic legislation. Thus, he welcomed the aim of the draft articles on those crimes to assist States in adopting legislation in their domestic jurisdiction to criminalize, investigate, prosecute and punish them. Furthermore, such legislation should also enable cooperation with other States in investigations and extraditions.
Indeed, the representative of the Russian Federation said he had initially questioned the need for the topic, but held that the Commission could add to its value through assistance in harmonizing national legislation on those crimes. The main aim of a future convention should be to facilitate cooperation among Governments, which would only be possible if national legislation would be based on what was contained in such a convention.
Argentina’s representative, while welcoming the establishment of a legal framework for international cooperation on the matter, said that the existing legal framework in investigation and local prosecution of international crimes was “out of date” and insufficient. His Government was pushing an initiative to negotiate a multilateral treaty on mutual assistance and extradition, which would, among other things, serve to strengthen the principle of complementarity enshrined in the Rome Statute.
As the Special Rapporteurs for the second cluster topics had been unable to stay through conclusion of deliberations on those topics, the Commission’s Chair expressed appreciation on their behalf for all comments and suggestions provided by delegates, and assured them that the Special Rapporteurs would read carefully all statements made and would take them into account as the topics moved forward.
Also today, the representative of Austria introduced a draft resolution on the report of the United Nations Commission on International Trade Law (UNCITRAL) (document A/C.6/70/L.9).
Also speaking today on the second cluster were representatives of Slovenia, Slovakia, Viet Nam, Indonesia, United Kingdom, Ireland, Malaysia, Republic of Korea and Iran.
Participating in the debate on the third cluster was a representative of Norway (for the Nordic countries) and a representative of the European Union.
The Sixth Committee (Legal) would next meet Tuesday 10 November at 10 a.m. to continue its consideration of the third cluster of topics of the report of the International Law Commission and consider requests for Observer status in the General Assembly for the Community of Democracies and for the Conference of Asian Political Parties.
Background
The Sixth Committee (Legal) today concluded its deliberations on the second cluster of topics from the report of the International Law Commission. It then commenced debate on the third cluster. For background see Press Release GA/L/3506.
Statements on Second Cluster
ANDREJ LOGAR (Slovenia), on the topic “Identification of customary international law”, said that he fully supported the International Law Commission’s request to the Secretariat to draft a memorandum on the role of national courts’ decisions for the determination of customary international law. In regards to the interplay between the notions of general practice and opinio juris, he said that it was necessary in every case to consider and verify the existence of each element separately. Rather than a particular order, what mattered was the presence of those two.
Turning to the question of inaction, he said that he shared the viewed that, in some cases, inaction could be ascertained as evidence of “opinio juris”. However, all the other relevant elements that formed a deliberate and active decision by a State should be carefully considered. While agreeing with the proposed draft conclusions, he proposed that additional attention should be given to the definitions and limits regarding appropriate terminology and geographical determination. Further, he said, it was crucial to make a clear distinction between customary international law and jus cogens as well as erga omnes obligations, especially in relation to the notion of persistent objector. Jus cogens were not ordinary legal rules. In fact, they reflected commonly excepted values that marked the level of development of a society as a whole.
On “Crimes against humanity”, he said that he appreciated the emphasis placed in the four draft articles on the aspect of punishment and the obligation of prevention. He also reiterated the importance of inter-State cooperation on mutual legal assistance and extradition for atrocity crimes. There was no modern multilateral treaty providing for mutual legal assistance and extradition for genocide, war crimes and crimes against humanity, he underlined. That, in turn, hindered the effectiveness of domestic prosecutions. Recognizing the importance of closing that legal gap, his country, together with the Netherlands, Belgium and Argentina, was leading an initiative for a treaty for mutual legal assistance and extradition for domestic prosecution of the most serious international crimes.
RICHARD GALBAVÝ (Slovakia), on the topic “Identification of customary international law”, said he agreed that the general practice and opinio juris elements were both indispensable for the identification of the rule of customary international law and that the extensive presence of one element could not compensate for the lack of the other. He also concurred with the view that there was a practical difficulty in qualifying inaction as practice or evidence of opinio juris; however, the criteria for inaction set out by the Special Rapporteur could serve as evidence of acceptance as law.
While noting the relevance of international treaties in identifying rules of customary law, he underlined that resolutions of international organizations and conferences could clearly not be regarded as evidence of such rules, unless in some specific situations sufficiently supported by practice and opinio juris. A case by case consideration seemed to be the only right approach, he added. Needed was a clear distinction between judicial decisions and writings as a subsidiary means for identification of customary rules, taking into account their different nature, procedure and effect. The separate and dissenting opinions attached to international tribunals’ decisions might be of high relevance as well. With regard to particular customs, he stressed that geographical nexus might serve as an important element to unequivocally establish the existence of such rule.
Moving to the topic “Crimes against humanity”, he said that thinking in the scope of a future convention was the only viable option for creating an effective implementation of the draft articles as an outcome of the consideration of the topic. He then welcomed that the definition of crimes against humanity fully aligned with the provisions of the Rome Statute, which was generally considered as reflecting customary international law. Furthermore, he expressed full support to the inclusion of an article on obligation of prevention, which was the paramount purpose of a new legal instrument.
MAHLATSE MMINELE (South Africa), addressing “Crimes against humanity” supported the approach of the draft articles in their application not only to after-the-fact punishment of such crimes, but also to their prevention. He further noted their horizontal nature aimed at assisting States in adopting legislation in their domestic jurisdiction to criminalize, investigate, prosecute and punish those crimes. As well, that legislation should also enable cooperation with other States in investigations and extraditions, he said, adding that the most effective way to fight such was in domestic legislation.
Agreeing with the conclusion that the term “armed conflict” included both international and non-international armed conflict, he suggested that draft article 2 explicitly “state the obvious”. He also agreed that it was appropriate to follow article 7 of the Rome Statue in defining those crimes. Concurring with draft article 4, on prevention, he pointed out that South Africa had adopted legislation and procedures in its domestic law to that end. He emphasized that no exceptional circumstances should be used to justify such crimes.
VU MINH NGUYEN (Viet Nam), commenting on the topic “Identification of customary international law,” reiterated support for the two element approach. With regard to draft conclusion 14, the work of the International Law Commission deserved a particular position and, in many cases, that work should be primary evidence of customary international law.
However, he said that he was unwilling to promote the recognition and promotion of particular customary international law “among States having no particular geographical nexus for fear of further fragmenting international law”. Strict criteria had to be applied to particular customs, such as identifying which States had participated in its practice and had accepted it as law.
In regards to the role of national courts in the case law of international courts and tribunals of universal jurisdiction, he that “judicial decision” in article 38 of the Statute of the International Court of Justice might include decisions of national and international courts. Strict caution was required due to the country-specific constitutional constraints of national courts and the doctrine of precedent in domestic law.
SERGEY A. LEONIDCHENKO (Russian Federation), on “Crimes against humanity”, said he had initially questioned the need for the topic when it had first been included in the Commission’s programme of work; those crimes had been defined in the Charter of the Nuremburg Tribunal and also had been addressed by the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. The Commission could add value to the topic through assistance in harmonizing national legislation on crimes against humanity.
The main aim of a future convention, he continued, should be to facilitate cooperation among Governments, which would only be possible if national legislation would be based on what was contained in such a convention. Therefore, he said, he disagreed with the Special Rapporteur that national legislation could have higher standards. It was also concerning that the extraterritorial application of national laws relating to prevention could be abused. A general mention of the obligation to prevent crimes against humanity in the context of international law would be sufficient in the draft articles.
On “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” he voiced support that articles 31 and 32 of the Vienna Convention on the Law of Treaties should be used in interpreting constituent instruments of international organizations; the organization based on such a founding act was a subject of that treaty and not a party to it. In that light it was important, when interpreting subsequent practice and subsequent agreements, to distinguish the actions of States from those of the organization itself.
While article 31 related to the practice of States parties, the practice of the organization itself could only qualify under article 32, he continued. Paragraph 1 of article 31 should not be emphasized in paragraph 3 of draft conclusion 11. Noting that paragraph 2 of that text mixed the practice of States and organizations and concluded that the behaviour of organizations could affect the practice of States, he said it would be more appropriate to speak of the practice of States rather than of organizations.
As the Commission had not provided commentaries of the draft conclusions on “Identification of customary international law”, he said he would not comment on that topic, suggesting that the Commission should take the traditional approach of adopting draft conclusions with commentary included.
FERRY ADAMHAR (Indonesia) addressing “Identification of customary international law”, stressed that the conclusions should be written clearly so that practitioners, especially those who are not familiar with the subject, could comprehend the meaning of the texts. He expressed doubt about the Special Rapporteur’s assertion in draft conclusion 3, paragraph 2 that when identifying the existence of a rule of customary international law, evidence of the relevant practice should generally not serve as evidence of opinio juris as well. Such a rigid separation of the way the existing evidence was being evaluated might undermine the existing circumstances relevant as evidence for both elements.
Among his comments he suggested redrafting draft conclusion 11, paragraph 3 on evidence of acceptance as law, to reflect the essence of the three conditions contained in the report, namely that: the inaction of a State could only be relevant for establishing concurrence where reaction in the relevant practice was called for; the State concerned must have had actual knowledge of the practice in question; and the need for inaction to be maintained over a sufficient period of time.
On the topic “Crimes against humanity”, he said a convention on the matter could provide regulation on inter-State relations in addressing crimes against humanity, focusing on the obligation of States to prevent crimes against humanity, promote national capacity building in the prevention and punishment of such crimes and the obligation of States Parties to exercise jurisdiction over an offender, including non-nationals present in its territory. The convention should also contain provisions on the obligation to prevent that would clarify the criteria as to how a failure of preventing the acts of crimes against humanity would incur State responsibility.
Turning to cluster 3 topics, he said the Special Rapporteur’s second report on “the Protection of the environment in relation to armed conflicts” had provided valuable information, including analysis on practice of States and international organizations, legal cases and judgments, law applicable during armed conflicts and protected zones and areas. He also said he looked forward to hearing commentaries by the Commission to the draft principles that would be considered at the next session.
Turning to the topic “Immunity of State officials from foreign criminal jurisdiction”, he said one important point related to immunity from foreign criminal jurisdiction relied on the prerequisite link between an act performed as an official capacity and the attribution of the act to a State, ultimately to its sovereignty, as the act constituted a manifestation of sovereignty in the form of exercise of State authority. The phrase “exercise of State authority” in the draft article 2(f) was an important element of the notion of “acts performed as an official capacity”.
SHERIN SHEFIK (United Kingdom) on the topic “Identification of customary international law” said that the draft conclusions dealt with international organizations to some extent, but not in a way that was entirely consistent. The practice of international organizations could only be equated with the practice of State where the international organizations was not acting ultra vires. With regard to forms of evidence, she noted that the draft should make it clear that the evidence would only constitute of opinio juris to the extent that the content demonstrated the necessary understanding of legal right or obligation. The inclusion of the word ‘may’ in the opening part of the draft could remedy that.
Moving to the topic of “Crimes against humanity”, she acknowledged that there was no general multilateral framework governing such crimes. Further, while she noted the careful consideration that the Special Rapporteur, the Commission and the Drafting Committee had given to the interrelationship between their work and the Rome Statue, she said that any additional regime would have to complement rather than compete with the Rome Statue. As work on the topic continued, the expansion of the scope of the investigation into issues such as civil jurisdiction and immunity was not welcomed. To that end, she urged the Commission to keep the draft simple, along the model of earlier aut dedere aut judicare conventions.
Turning to the topic “Subsequent agreements and subsequent practice”, she welcomed the Special Rapporteur’s third report on the topic and the Commission’s additional draft conclusion. She then noted that it was an issue which could be complicated due to the variety of international organizations and the numerous ways where they could operate. She also welcomed the careful drafting of draft conclusion 11, which conformed to the terms of article 5 of the Vienna Convention.
JAMES KINGSTON (Ireland) said many aspects of the topic “Identification of customary international law,” such as draft conclusion 3, paragraph 2, would benefit from further elucidation in accompanying commentaries, the basis for which might be found in the Special Rapporteur’s report. He also urged further examination of the practice of international organizations. A cautious approach to inaction was required and specific criteria should be taken into account to qualify inaction as evidence of acceptance. A treaty, in and of itself, did not create customary international law or conclusively attest to it.
He went on to say that he supported a change to draft conclusion 12 to include a statement to the effect that resolutions or international organizations or intergovernmental conferences would not, of themselves, create a rule of customary international law. Regarding draft conclusion 13, further guidance within the commentaries would be a benefit, given its succinct nature. On the matter of persistent objector and particular customary international law, the draft commentaries would be important in setting out a common understanding on those two questions.
EDORA AHMAD (Malaysia), with regard to the “Identification of customary international law”, said that the act of a State that was not a member of an international organization but had chosen to adopt, support or follow the resolution of that organization should be considered as providing evidence for establishing State practice. Noting that the forms of evidence for ascertaining practice and opinio juris could overlap, she sought further clarification on instances where the same form of evidence or material could be examined for both constitutive elements. She added that the requirement of widespread representativeness had to be clarified and that due consideration had to be given to the practice of specially-affected States in the identification of customary international law.
Moving on to the topic on “Crimes against humanity”, she expressed her Government’s firm commitment to ending impunity and noted that the Rome Statute already criminalized such acts. In order to avoid overlap with existing regimes, a convention should be drafted prudently and focus on the prevention of international crimes. What required urgent attention were practical issues relating to the investigation, apprehension, prosecution and punishment of those who had committed international crimes, including through cooperation amongst States. Other surrounding legal issues such as universal jurisdiction, primacy of jurisdiction and immunity of State officials also merited consideration in discussing the draft Convention.
As for the issue of “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, she reiterated her concern regarding the modifying effect of a subsequent agreement and subsequent practice in particular when it resulted in altering the provisions of the treaty or providing too broad interpretation of treaty provisions. The modification or amendment of a treaty should only be done in line with the provisions of the Vienna Convention, she underlined. Furthermore, she encouraged the Special Rapporteur to explore the applicability of the provisions of the Vienna Convention for the interpretation of treaties adopted within international organizations.
RHEE ZHA-HYOUNG (Republic of Korea), on “Identification of customary international law”, said while it was difficult to make practical comments on the draft conclusions which had not yet been accompanied by relevant commentaries, that draft conclusions 4, 10 and 12 required more detail and explanation on the role of non-State actors, the elements of inaction and determination of the relevance of a treaty provision. In draft conclusion 13, great caution should be used by the Commission in assessing the evidentiary importance of resolutions adopted by international organizations and intergovernmental conferences. Regarding draft conclusion 16, concerning persistent objector, a “high level of clarity” was required. Rather than rushing the draft conclusions in 2016, the Commission should review issues carefully.
Turning to “Crimes against humanity”, he said “considerable hesitation” among States towards signing a convention could be expected if the provisions of such a convention differed significantly from those in domestic laws or which imposed exceedingly burdensome obligations. Close consultations between States and the Commission, particularly in the Sixth Committee, would be useful. In drafting such a convention, detailed examination of existing treaties would be necessary, and it would be appropriate for parties to the proposed convention to also be parties to the Rome Statute.
On the topic “Subsequent agreements and subsequent practice”, he said, referring to draft conclusion 11, that particular attention needed to be given to the constituent instruments of international organizations. Article 5 of the Vienna Convention could act as a starting point for dealing in the interpretation of such instruments. It was not always easy to identify whether States meeting in a plenary of an international organization were acting as members of that organization or as State parties to its constituent instruments. The most important factor was the intention of the States concerned. With regard to an international organization’s own practices, evaluation should be undertaken on a case-by-case basis.
REZA DEHGHANI (Iran) said the Commission’s consideration of “Identification of customary international law” should be based on the centrality of States; the general practice of States as main actors in international relations constituted the main criteria in identifying customary international law. The inaction of States in respect of a violation of a rule of international law could not be seen as relevant practice in formation of customary international law. Among his comments, he said that with respect to the nature of provisions included in existing quasi universal treaties, mere universality should not be considered as criteria for identifying customary international law. The Commission should define the criteria and circumstances under which those provisions crystallized into a rule of customary international law for the States not parties to those instruments.
On the topic “Crimes against humanity”, he said the idea of drafting a new convention was premature and still needed serious consideration. Crimes against humanity as a crime under international law had already been defined clearly in numerous international instruments since the Second World War. Most important among them was the Rome Statute. Several States had already criminalized those acts in their national legislations. Furthermore, under the principle of aut dedere aut judicare, bilateral judicial assistance agreements and other instruments referred to by the Special Rapporteur in the first report, there was sufficient legal basis as to the prevention and punishment of crimes against humanity. It would be more reasonable to determine the reasons and motives of non-implementation of existing provisions on crimes against humanity and to propose methods to eliminate them.
On the topic “Subsequent agreements and subsequent practice”, he said the work of the Commission should not exceed the limits of principles elaborated in articles 31 to 33 of the 1969 Vienna Convention. It should be consistent with the object and purpose of the 1969 Convention. With respect to the subsequent practice of parties to constituent instruments of international organizations, he said interpretation of the instrument should be the very intent of the parties to it. A proper interpretation of constituent instruments of international organizations should be coupled with consideration not only of the intention and will of negotiators of the original instrument but also of its actual practice and the intentions of all Member States to modify the original mandate.
JOSÉ LUIS FERNANDEZ VALONI (Argentina), said the exercise on the topic “Identification of customary international law” had practical value, especially for national courts charged with interpretation of application of international law to a concrete case. However, there existed a risk that the texts still reflected an overly broad level of abstraction which could undermine its practical impact. He said he looked forward to more comments on draft articles which could provide a more comprehensive picture of the exercise. He also expressed concern with reference to the practice of non-State actors, adding that with respect to intergovernmental organizations in particular, their practice was relevant only to the extent that it reflected the will of member States of a given organization.
Turning to “Crimes against humanity”, he welcomed the establishment of a legal framework for international cooperation. The existing legal framework for international legal assistance in investigation and local prosecution of international crimes was “out of date” and insufficient. For that reason, his country was pushing for the initiative to negotiate a multilateral treaty on mutual assistance and extradition, which would, among other things, serve to strengthen the principle of complementarity enshrined in the Rome Statute. It was necessary to proceed with caution on the definition of that conduct to avoid the risk of duplication or fragmentation. He welcomed focus by the Commission to textually transcribe relevant norms of the Rome Statute, recognizing the customary nature of those norms.
Introduction of Third Cluster Topics
NARINDER SINGH, Chairman of the International Law Commission, introducing the third cluster of topics from the Commission’s report, recalled that the topic “Protection of the environment in relation to armed conflicts” was being considered in temporal phases rather than considering each legal regime as a distinct category. Each phase would address the legal measures to be taken to protect the environment before, during and after armed conflict, phases I, II and III respectively.
The preliminary report in 2014 had provided an introductory overview of environmental rules and principles applicable to a potential armed conflict, so-called “peacetime obligations”, he said. The second report in 2015 had sought to address the second phase and identified and examined existing rules of armed conflict directly relevant to the protection of the environment in relation to armed conflict. The Drafting Committee had reviewed introductory provisions on “scope” and “purpose” and provisionally approved six draft principles. The Commission anticipated reviewing those draft introductory provisions and principles, along with accompanying draft commentaries at its sixty-eighth session in 2016.
Summarizing the Commission’s debate on the topic, he said that the methodological examination of rules and principles of international environmental law to consider their applicability during armed conflict and their relationship to that regime was key. There had been wide agreement regarding the topic’s scope that both international and non-international conflict should be covered. In that regard several members had emphasized the need for further research on the practice of non-State actors; it was important that the draft principles would reflect the prohibition on the use of means of warfare intended or expected to cause widespread, long-term and severe damage to the natural environment.
He went on to detail the discussion on each of the drafts provided in the Special Rapporteur’s report. The proposed future programme of work would have the Special Rapporteur address issues that had not yet been examined during the second phase, as well as the law applicable in post-conflict situations. In addition, a summary analysis of the three phases would be provided. It was of utmost importance that States to provide information concerning legislation and regulation in force aimed at protecting the environment in relation to armed conflict. Also requested was information on whether, in their practice, international or domestic environmental law had been interpreted as applicable in relation to international or non-international armed conflict.
Turning to the topic “Immunity of State officials from foreign criminal jurisdiction”, he recalled that the report on the topic in 2014 had addressed the question of the beneficiaries of immunity ratione materiae. The current report had looked at what constituted an “act performed in an official capacity”, as well as matters concerning the temporal scope of immunity ratione materiae. The Drafting Committee had presented draft articles 2 (f) and 6, which it had provisionally adopted. The Commission was expected to adopt those articles with commentaries in 2016.
Debate within the Commission had revolved around a number of central points, he said, the first of which related to the definition of “an act performed in an official capacity”, encapsulated in draft article 2(f). That definition was considered the key question that distinguished the conduct based immunity ratione materiae. However, different views were expressed regarding whether a definition was required, with some members of the Commission holding that practice did not bear out the need for one, while others said that, if properly drafted, such a definition could be necessary or useful. The definition proposed by the Special Rapporteur contained three elements, namely: the link between the act and the criminal nature of the act; the attribution of the act in some fashion to the State; and the link to sovereignty and the exercise of elements of governmental authority. He then went on to detail deliberations on each of those elements.
He said that the debate on draft article 6 on the “Scope of immunity ratione materiae” had been uncontroversial. The draft set out the material and temporal elements of that immunity. Some members considered it crucial to stress the functional nature of the immunity before addressing the temporal element. He noted that draft article 6 must be read together with draft article 5, provisionally adopted by the Commission in 2014, according to which State officials acting as such enjoyed immunity ratione materiae from the exercise of foreign criminal jurisdiction.
He also noted that consideration of limitations and exceptions to immunity was a key aspect of the topic. Thus, some States had stressed a thorough analysis not only of the evidence of State practice but also for the nuance in the positions taken, including whether Governments viewed international law in that area as being settled. The question of limitations would be taken up in 2016. In that light he requested information from Governments on their legislation and exceptions to the immunity of State officials from foreign criminal jurisdiction.
Regarding the “Provisional application of treaties”, he said that six draft guidelines had been referred to the Drafting Committee. It was anticipated that that Committee’s consideration of those texts would be concluded in 2016. The Special Rapporteur’s report had continued analysis of State practice and considered the relationship of provisional application to other provisions of the 1969 Vienna Convention, as well as the question of provisional application with regard to international organizations among other matters.
He then summarized the Commission’s debate on the topic. Among proposals made on future work, it was suggested that there be a focus on the legal regime and modalities for the termination and suspension of provisional application. It had also been suggested that, among other possibilities, the Special Rapporteur could seek to identify the types of treaties and provisions in treaties which were often the subject of provisional application, and whether certain kinds of treaties addressed provisional application similarly. Members supported the approach of preparing draft guidelines to provide States and international organizations with a practical tool, with some expressing a preference for presenting those guidelines as draft conclusions.
Statements on Third Cluster
OYVIND HERNES (Norway), speaking also for the Nordic countries, expressed support for the draft principles on the “Protection of the environment in relation to armed conflicts”. The obligation existed under existing international law, he said, welcoming inclusion of the proposed principle II-4, which established that attacks against the environment by way of reprisals were prohibited. He recalled that draft principle II-5 stated that areas of major environmental and cultural importance designated by agreements as protected zones shall be protected against attack, as long as they did not contain a military objective. While it may be challenging to establish such agreements, that approach could contribute significantly to the increased protection of the environment in armed conflicts.
On the topic “Immunity of State officials from foreign criminal jurisdiction”, he said the fourth report and the Commission’s consideration clearly demonstrated that several elements were legally complex and raised important issues of inter-State relations. Legal clarity must be sought in questions relating to the fight against impunity for serious crimes of international concern. It was necessary to determine whether acts, which could be beyond the benefit of immunity ratione materiae, should be addressed as limitations or exceptions to immunity. For the most serious crimes that concern the international community, he reiterated that no State officials should be shielded by rules of immunity.
Turning to the topic “Provisional application of treaties”, he said that examples of agreements where provisional application had been resorted to had been previously noted. In those instances, when they agreed to apply treaties provisionally, the same legal effects were produced as if those instruments were formally in force. The issue of international responsibility of a breach of treaty which was applied provisionally could require some further study. He expressed support for the formulation of draft guidelines, noting that those could serve as a practical tool for States and international organizations. It could also be useful for the Commission to develop model clauses on provisional application in its future work.
EGLANTINE CUJO, the European Union, said the Union had made regular use of provisional application of treaties on various fields of law; some part of its practice that specifically related to multilateral agreements had been reflected in the annex to the third report. In almost half of the 50 agreements identified by the Secretariat, the Union had been a contracting party. It also used provisional application in its bilateral agreements, including association agreements with third States.
Those types of agreements established a broad framework for cooperation and integration, she continued. Recent examples include the association agreements signed by the Union in 2014 with Ukraine, Georgia and Moldova. Provisional application covered not only trade, but political dialogues, as well as institutional provisions. In the area of provisional application of treaties, the Union acted in the same way as other affected stakeholders. Those examples also demonstrated that that the Union contributed to shaping practice in the field.
NATALIE Y. MORRIS-SHARMA (Singapore) said the most productive approach to the topic “Protection of the environment in relation to armed conflicts” would be to focus on identifying how existing international humanitarian law related to the environment, rather than introducing principles of international environmental law or human rights law, which complicated the issue. Expressing agreement with the Special Rapporteur, she said it was not the Commission’s task to revise the law of armed conflict. Touching on various aspects of the draft principles, she suggested that paragraph 2 of draft principles II-1 and draft principle II-4 be phrased in less absolute terms, noting that draft principles were not generally accepted as rules under international customary law. Non-binding draft guidelines could be the most appropriate outcome on the topic.
On the topic “Immunity of State officials from foreign criminal jurisdiction”, she said she agreed that while the temporal scope of immunity ratione materiae was not controversial, the material scope would still benefit from further study. The Drafting Committee’s provisional draft, which provided that such acts were “any act performed by a State official in exercise of State authority”, was a workable definition. It offered a way of addressing the questions of scope of immunity ratione materiae vis-à-vis certain acts such as ultra vires acts, acta jure gestionis and acts performed in an official capacity but exclusively for personal benefit.
Turning to the topic “Provisional application of treaties”, while agreeing with the general thrust of the Commission’s discussions, she noted that it would be beneficial to have further substantiation on the conclusion that the legal effects of provisional application were the same as those after entry into force of the treaty. In addition, although the provisional application of a treaty was capable of giving rise to legal obligations as if the treaty were itself in force, questions remained, including whether that would be the case at all times and what factors would have to subsist. It would be useful to study whether the various “processes” for treaties that had been provisionally applied and for treaties that had entered into force would be the same.