Continuing Review of International Law Commission Report, Sixth Committee Speakers Raise Concerns about Language in Texts on Identifying Customary Law
As the Sixth Committee (Legal) continued its debate on the first cluster of topics from the International Law Commission’s report, speakers, while in general agreement on the topic “Identification of customary law”, raised questions over some of the specific language contained in that chapter. (For background, see Press Release GA/L/3529.)
Pointing to a particular example of word usage in one of the draft conclusions, the representative of Spain noted that the use of the Spanish word “norma” was unsuitable, whereas “previsión” or another noun would be more preferable.
The Netherlands’ delegate underscored that some aspects of customary international law were often expressed in languages of States that were not among the six official languages of the United Nations. Those instances might be of value and contribute to the topic at hand.
Honing in on the draft conclusion addressing forms of evidence of acceptance as law, the representative of the Czech Republic said he was not convinced that it would sufficiently protect States as it was currently worded. Failure to react had different significance depending on the extent and degree to which the rights and obligations of a State were affected.
Referring to the same section, Australia’s representative expressed a similar sentiment, noting that inaction was not evidence of acceptance. A State would need to know of a certain practice and have had a reasonable time for response.
However, other speakers pointed to improvements made through particular wording, with the representative of Chile praising the inclusion of the “particular” in “particular customary international law”. In a diverse world, different geographical regions had customary rules that were specific rather than general, a fact that had been recognized by the International Court of Justice with regards to the right of asylum and the right of passage.
Echoing that stance, the representative of Sudan said that the challenge of general practice accepted as opinio juris was the diversity of legal regimes throughout the world. Highlighting the importance of granting technical assistance to developing countries, he underscored that the language used in such cases should not present an impediment.
Also speaking today were representatives of Turkey, El Salvador, Peru, Russian Federation, Romania, Austria, United Kingdom, Portugal, Germany, and Philippines.
The Sixth Committee will next meet at 10 a.m. on Wednesday, 26 October, to continue its consideration of the report of the International Law Commission.
Statements on Cluster I
PETR VALEK (Czech Republic) welcomed the final draft articles on “Protection of persons in the event of disasters”, as well as most of the changes that were made in the draft articles and commentaries on the second reading. However, the explicit reference to the unlimited possibility of termination of external assistance at any time in the draft article 17 did not seem appropriate. With regard to the future form of draft articles, it was not necessary to elaborate a convention.
On the subject of “Identification of customary international law”, he voiced his support for the principle in draft conclusion 4 that weight be given to the practice of States in formation or expression of the rules of customary international law. In future discussions, the Commission could consider all aspects of inclusion of the practice of international organizations in the framework of the draft conclusions.
With regard to draft conclusion 10, he said that paragraph 3 deserved further detailed consideration. The current wording of that conclusion did not sufficiently protect States, which did not openly object to certain practice of other States, from being incorrectly regarded as accepting a developing customary rule. Failure to react had different significance depending on the extent and degree to which the rights and obligations of a State were affected.
Turning to “Subsequent agreements and subsequent practice” and in regards to draft conclusion 1, he said that it should not be assumed that the International Law Commission’s (ILC) conclusions concerning the role that subsequent agreements and subsequent practice might play in the interpretation of treaties between States could also be automatically transposed to treaties between States and international organizations or between international organizations.
SUE ROBERTSON (Australia), in regards to “identification of customary international law”, said that there was an inherent difficulty in determining when State practice had reached a critical mass and customary international law was formed. It was not the Commission’s work to provide guidance on that point. Instead, the draft conclusions provided guidance to practitioners to determine the existence or content of a customary rule at a particular point in time.
She said she was open to the possibility that the practice of international organizations might contribute to the formation of custom in “certain cases” as suggested by draft conclusion 4. Still, the role of international organizations in the formation of customary international law needed to be approached with some caution.
Turning to draft conclusion 10, paragraph 3, she welcomed the Commission’s efforts to clarify its scope with respect to inaction as a form of practice and/or evidence of acceptance as law - opinio juris. Nonetheless, she stressed that inaction should not be assumed as evidence of acceptance of law. A State would need to know of a certain practice and have had a reasonable time for response.
İPEK ZEYTINOĞLU ÖZKAN (Turkey) took note of the Commission’s decision to include the topic of “Succession of States in respect of State Responsibility” in its long-term programme of work. She pointed out that in regards to the draft articles on “Responsibility of States for internationally wrongful acts”, which had been adopted by the Commission in 2001, States had not been able to agree on a course of action.
The Succession of States was a complex issue, she continued, adding that she had doubts on whether States could reach a common understanding on that issue. The outcome of the work of the Commission needed to be acceptable for States and she was not convinced on the relevance for the Commission to take up that topic.
On “Identification of customary international law”, she welcomed the adoption of draft resolution 15 regarding the persistent objector rule.
MARIA DEL PILAR ESCOBAR (El Salvador), associating herself with the Community of Latin American and Caribbean Countries (CELAC), stated her support for the codification and progressive development of “Protection of persons in event of disasters”, a stance taken since the beginning of the Commission’s study on that topic. Given her country’s high level of vulnerability to disaster, effective risk management, civil protection, early warning systems, and “mending social fabric torn apart by natural disasters” was of great importance.
She went on to say that the drafts were in alignment with international human rights law, especially with regard to the obligation of the State to respect and guarantee the rights of persons in its jurisdiction. Noting that paragraph 3 of the draft preamble could have benefited from the terminology used in international human rights law, she added that the elaboration of a convention should be considered an essential tool for global disaster response.
On “Identification of customary international law,” she said that the commentary to draft conclusion 6 on forms of practice made it clear that inaction would be a practice only when a State deliberately refrained from taking action. In order to identify a practice, the State must be aware of its inaction. The draft conclusion on persistent objectors should be drafted with due caution. And her delegation called for greater clarity in the text of that draft.
Turning to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties,” she said that in draft conclusion 9 on the weight of subsequent agreements and subsequent practice, the weight given to those aspects should depend on their clarity and specificity. Other criteria should be added to that, including the moment of time when the practice began and the importance attached by parties.
GUSTAVO MEZA-CUADRA (Peru), associating himself with CELAC, said that the 18 draft articles on “Protection of persons in the event of disaster” struck an adequate balance between the dignity of human beings and the sovereignty of States. States were able to seek external assistance when a disaster exceeded the national capacity to respond. The articles also took into account the importance of disaster risk reduction.
Turning to “Identification of customary international law,” he said that his Government would provide comments on the 16 draft conclusions before the deadline that had been established. With regards to “Subsequent agreements and subsequent practice” he noted the approval by the Commission of 13 draft conclusions with comments.
On Chapter XIII, “Other decisions and conclusions of the Commission”, he said that the first part of the 2018 session should be held in New York. He also underscored that the prompt processing of documents in the official languages of the United Nations would ensure they were available in a timely fashion.
ELENA A. MELIKBEKYAN (Russian Federation), commenting on “Protection of persons in event of disasters”, noted that the ILC had not moved away from the initial idea of draft articles. The best form for the topic was draft guiding principles, since that was a flexible form enabling Governments to best incorporate those practices into the daily work of the States. Article 9 was an example of progressive development of law and included duty of conduct, not duty of result. ”We are on shaky ground here,” she said, adding that the draft articles were focused on the duty of the affected States, while few provisions pertained to the rights of the affected States.
On “Identification of customary international law,” she said that the breadth and depth of that topic had raised the question of whether the Commission would be able to go beyond a theoretical paper. Still, the Commission had moved towards a practical manual. Adding that draft articles 4 and 5 left out some aspects for identifying customary international law, she said the Commission should carefully study that or consider adding an additional conclusion about the relationship between different sources of international law. In addition, the presence of pre-existing norms of customary law should be considered separately and not as part of the context. International law was sufficiently developed and norms did not exist in a vacuum.
ALINA OROSAN (Romania) said that she favoured the approach of the draft articles on “Protection of persons in the event of disasters” which established a well-defined balance between the principle of State sovereignty and the primary role of the State affected by disaster in providing relief assistance.
With regard to “Identification of customary international law”, she voiced her agreement with the Commission in regards to widening the scope of the analysis so that the practice of international organizations could be included alongside that of States.
Turning to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, she said she was pleased to see that new draft conclusion 1(a) referred to the relevance of such subsequent agreements between States and international organizations. She also voiced her agreement with the new conclusions and commentaries of conclusions 12 and 13.
Referring to Chapters III and XIII, she also welcomed the intended consideration of the “Settlement of international disputes to which international organizations are parties”. In regards to “Succession of States in respect of State responsibility”, she said the analysis of the ILC was of limited relevance.
AUGUST REINISCH (Austria), on the “Protection of persons in the event of disasters”, said that the magnitude of such events regularly exceeded the capability of individual States and that the draft articles filled a gap. His Government had submitted extensive comments on the first reading of the draft articles. Some were reflected in the new text, while others had not been taken adequately into account. It would be premature to immediately elaborate a convention on the basis of the draft articles; States should have time to familiarize themselves with the material.
Turning to “Identification of customary international law,” he said that the 16 draft conclusions provided an excellent starting point, but that there were some points that might require adaptation. For example, draft conclusion 13 proposed to introduce an important differentiation between decisions of international and national courts and tribunals. Paragraph 1 considered decisions of international courts and tribunals “to be” subsidiary means for the determination of customary international law, but in paragraph 2 it was only possible to “have regard to, as appropriate” decisions of national courts for the purpose of evidencing customary international law as subsidiary means. The commentary explained that this might be due to a lack of international law expertise. He said he was not convinced that such a principled distinction should be made, adding that article 38 of the Statute of the International Court of Justice did not make such a distinction.
With regards to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties,” he congratulated the Commission on the textual streamlining of the draft conclusion on “pronouncements of expert bodies” and noted that “decisions of domestic courts” were not yet reflected in the draft conclusions provisionally adopted.
Concerning “Other decisions and conclusions of the Commission,” he said that he had taken note of the two topics for further deliberation by the Commission provided in annexes A and B to the Commission’s report.
Turning to “The settlement of international disputes to which international organizations are parties,” he said that he appreciated the overview of legal problems it contained and supported the inclusion of that topic into the agenda.
On “Succession of States in respect of State responsibility,” he said that it was a highly controversial topic that had been excluded from the previous work of the ILC, adding that he wondered whether dealing with “the most controversial issues of State responsibility” would lead to an acceptable result at that stage.
HELEN MULVEIN (United Kingdom) noted the inclusion by the Commission of two new topics, including the “Settlement of international disputes to which international organizations are parties” and “Succession of States in respect of State responsibility”.
Turning to “Protection of persons in the event of disasters”, she said that although she remained in broad agreement with the substance of the draft articles as adopted by the Commission, she emphasized that the development of guidelines, rather than a legally binding instrument, would be more helpful.
On the “Identification of customary international law”, she welcomed the adoption by the Commission of 16 draft conclusions, together with commentaries. Those draft conclusions were a valuable tool for judges confronted with the question of determining whether a customary rule of international law existed.
Turning to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, she underscored that the adoption by the Commission of the 13 draft conclusions gave helpful guidance to States, international organizations and courts.
SUSANA VAZ PATTO (Portugal) noted with satisfaction that the ILC had recommended to hold the first part of its seventieth session in New York and that a commemorative event would be held in 2018 in both New York and Geneva. She also expressed satisfaction that the ILC had reconstituted the Working Group on Long-Term Programme of Work.
With regards to “Protection of persons in the event of disasters”, she said that the draft articles contained a balanced approach between State sovereignty and the need to protect human rights. The work of the Commission should be translated into legally binding instruments to promote stronger ownership by individual States.
On “Identification of customary international law” the proposed amendments to draft conclusion 3 on “assessment of evidence for the two elements” and 12 on “resolutions of international organizations and conferences” were a step in the right direction. Nonetheless, those draft resolutions could be further improved.
Turning to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, she said that the Commission’s work offered valuable guidance and remained “creatively” within the limits of the Vienna Convention. She also welcomed the draft conclusion on the role of expert treaty bodies.
CLAUDIO TRONCOSO REPETTO (Chile) said that his country had suffered serious disasters, including earthquakes, throughout its history and had benefited from the generous assistance of many States and different organizations. The draft articles on “Protection of persons in event of disasters” represented a very important step towards regulating that within international law, and he voiced his support for the Commission’s recommendation that the international community draw up a convention on the matter.
Turning to “Identification of customary international law,” he focused on draft conclusions 11, 12, 13 and 14, which referred to treaties, resolutions of international organizations and intergovernmental conferences, decisions of courts and tribunals, and teachings. While he supported the wording of those conclusions, he noted the absence of a special section on the work accomplished by the ILC. That could perhaps be reflected in the text under conclusion 12 relating to the resolutions of international organizations and intergovernmental conferences as a means of identification of customary international law, since, as a rule, when the Commission completed its work on a draft, the General Assembly took steps to adopt it as an annex to a resolution.
Giving a detailed overview of “Identification of customary international law”, he welcomed conclusion 16 on “particular customary international law” because it was only natural in a diverse world that different geographical regions and peoples should have customary rules that were not general in nature. That was also recognized by the International Court of Justice in cases regarding the right to asylum and the right of passage. Concluding, he said that the ILC’s “excellent report” would undoubtedly expedite the identification of customary international law.
JOSE MARTIN Y PEREZ DE NANCLARES (Spain) said the draft articles on “Protection of persons in the event of disasters” rightfully focused on the protection of persons and struck the right balance between respect for the sovereignty of the affected State and the required cooperation of third countries.
Turning to “Identification of customary international law,” he said that the commentary to draft conclusion 5 indicated that practice “must be publicly available or at least known to other States”. The addition of “it is necessary for practice to be made publicly available to give other States the opportunity to object to the customary provision in question” should be included. Part five was problematic; in draft conclusion 11 (“Treaties”) he said he did not consider the Spanish “norma enunciada en un tratado” (“rule set forth in a treaty”) to be correct, and suggested the use of “prevision” or another noun, because “norma” was unsuitable.
With regard to “Subsequent agreements and subsequent practice”, he focused on what he called the most significant new item, draft conclusion 13 on “pronouncements of expert treaty bodies.” While it was appropriate to include that draft conclusion, he said that the phrase “experts serving in their personal capacity” might not be suitable, suggesting the phrase “independent experts” instead.
MICHAEL KOCH (Germany), commenting on the “Protection of persons in event of disasters”, welcomed the clarifications and editorial improvements in the draft articles. The introduction of “manifestly” as a new qualifier in draft article 11 as an objective threshold for the duty of the affected State to seek assistance was welcomed. The texts provided good recommendations that would support international practice.
In regards to the draft conclusions and the comprehensive commentaries on “Identification of customary international law,” he said the commentary provided legal practitioners with a useful and practical guide to customary international law and lauded the Rapporteur’s careful and balanced approach.
Turning to “Subsequent agreements and subsequent practice”, he said that the Commission had been able to adopt a comprehensive and academically rigorous commentary that would help States assess the Commission’s work in a thorough manner. It was beneficial to cover the topic of how decisions of domestic courts applying international treaties might constitute relevant subsequent practice for the interpretation of such treaties.
IGOR GARLIT BAILEN (Philippines), focusing on “Protection of persons in event of disasters”, welcomed the emphasis placed by the draft articles on human dignity, human rights, particularly the right to life, and humanitarian principles. Article 10 articulated the fundamental principle that the affected State had the primary role in the direction, control, coordination and supervision of disaster relief assistance.
“We dissect the very heart of the draft articles” when reading articles 10, 11 and 13 together, he said. Those draft articles recognized that a disaster could exceed, manifestly or otherwise, the affected State’s capacity to respond. Creating a qualified consent regime for such a State, to be exercised in good faith, balanced the right to sovereignty with the obligation of the sovereign to protect human life and human rights during disasters.
LIESBETH LIJNZAAD (Netherlands) said she did not favour the elaboration of the draft articles on the “Protection of persons in the event of disasters” into a convention. The articles reflected the codification of international law, but to achieve agreement with regard to a convention might be difficult and the outcome might be unsatisfactory.
Turning to the “Identification of customary international law,” she addressed the matter of language and accessibility. Aspects of customary international law were often expressed in a language other than the official languages of the United Nations, but might contribute to the language of international law instead of relying on information that was easily available.
Turning to “Subsequent agreement and subsequent practice”, she welcomed the introduction of a draft conclusion on the pronouncement of expert bodies. Even if the pronouncements of expert bodies were not legally binding, they often contained an authoritative interpretation of that treaty, she said.
OMER DAHAB FADL MOHAMED (Sudan), noting that the draft articles on “Protection of persons in event of disasters” accorded primacy to the responsibility of affected States, added that the main reasons for international assistance was humanitarian.
Turning to “Identification of customary international law,” he expressed support for the Commission’s focus on two elements of general practice. It was important to underscore the relationship between the two constituent elements while also ensuring that each of the constituent elements be examined separately. The main challenge posed by general practice accepted as opinio juris was the diversity of legal regimes throughout the world. Reminding the Committee of the importance of granting technical assistance to developing countries, he added that the language used should not be an obstacle.
On “Subsequent agreements and subsequent practice in relation to the interpretation of treaties,” he highlighted conclusion 2 on general rule and means of treaty interpretation. In practice, there was an expansion in the interpretation of international conventions. That ran counter to the fundamental principles of international law. Such expansion did not serve international law and must be avoided at all costs.