Concerns about Protection of Environment Increasingly Present in Disputes before World Court, that Body’s President Tells Sixth Committee

Speakers Continue Deliberations on Second Cluster of Topics from International Law Commission Report

The protection of the environment was increasingly becoming an important concern, both on the international stage and in the disputes brought before the International Court of Justice, the President of that body told the Sixth Committee today.

Ronny Abraham, President of the International Court of Justice, addressing the Committee on the development of international environmental law, said that the Court’s contributions were not limited to the decisions made in cases directly related to the protection of the environment.  In an advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, the Court had recognized the general obligation of States to ensure that activities within their jurisdiction must respect the environment of other States or of areas beyond national control.

It was in a judgement issued in 2015 that the Court was faced with the opportunity – or rather, the necessity – to further clarify the applicable rules of customary international law in the field, he continued.  Judging the merits of cases, Certain Activities carried out by Nicaragua on the Border Area (Costa Rica v. Nicaragua) and the Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), the Court had confirmed that general international law imposed on States obligations of a substantive as well as of a procedural nature when it came to activities carried out in their territory that might detrimentally impact the environment.

Highlighting the tools available to the Court to respond to cases involving environmental issues, he said that certain provisions of the Court’s Statute and Rules provided for the Court to indicate provisional measures when necessary.  Those provisional measures were a particularly useful tool to ensure that a decision of the Court in a case involving allegations of environmental damage did not come at a time when serious and irreversible damage had already been caused.

Since the Court was a judicial organ and not a scientific body, it used the appointment of experts as a method for establishing the facts in environmental disputes because of the abundance of technical and scientific complexity of the factual data presented by parties in support of their positions, he said.  The Court’s Rules also provided it the power to conduct site visits.  More importantly, he pointed out that the Court was willing to adapt its methods of work to take careful account of the specific nature of cases involving environmental issues.

During the debate on the second cluster of topics from the International Law Commission’s report, which included “Jus cogens” and “Crimes against Humanity”, “Protection of the atmosphere” figured chiefly, with many delegations stressing that environmental matters knew no borders, making international law on that matter all the more crucial.

Atmosphere-contaminating agents were capable of traveling over large distances and crossing borders, the representative of Mexico reminded the Sixth Committee.  The legal scope of international cooperation to tackle such degradation needed to be clarified to guarantee its implementation.  The fragmented approach occurring through multiple related conventions and norms showed the need for a condensed regulatory framework.

Also stressing that transboundary haze was affecting the health and economy of her country and others in the region, Singapore’s delegate pointed out that her Government had enacted legislation to deter errant companies by holding them accountable for the environmental and health impacts of their actions.  Voicing support for draft guideline 3 on the “Obligation to protect the atmosphere”, she agreed with the view of the Special Rapporteur that the maxim of sic utere tuo ut alienum non laedas, (“use your own property so as not to injure that of another”) was well-established and accepted in inter-State relations.

The representative of Sudan, echoing the delegate of Singapore’s stance on draft guideline 3, called that text an expression of the common interest of humanity.  However, he noted that while the expression about exercising due diligence in that guideline represented an obligation on States, the phrase, “according to their abilities” defeated the purpose of that obligation with its loose wording.

South Africa’s delegate called the Commission’s work on “Protection of the atmosphere” timely, especially with the imminent entry into force of the Paris Agreement on Climate Change.  However, there was concern about the blanket exclusion of precautionary, preventive, and polluter pays principles as well as the common but differentiated responsibility principle.  The guidelines must include operative language on the specific situation faced by developing States on protection of the atmosphere.

Brazil’s representative reminded the Committee that the language in the preambular paragraph on awareness of “the special situation and needs of developing countries” was based on the preamble of the 1997 Convention on the Law of Non-Navigational Uses of Watercourses.  In addition, the Commission should give careful consideration to language from the Paris Agreement, including the expression “common concern of humankind”.

As a small island developing State, Tonga was particularly susceptible to pollution and climate-related challenges, said that country’s representative.  Calling for urgent and concerted efforts to tackle ozone layer depletion and organic pollutants, he said there was a pressing need to continue to identify, develop and codify existing and emerging rules and principles of international law in an authoritative manner. 

The representative of Tuvalu, another small island State, also underscored his country’s vulnerability to the effects of climate change.  Noting that Tuvalu had been among the first to ratify the Paris Agreement, he stressed that the atmosphere was a limited natural resource shared by the whole international community.  Everyone carried a sacred responsibility to use it sustainably, he said, fully endorsing draft guideline 5 on sustainable utilization of the atmosphere and draft guideline 6 on equitable and reasonable utilization of the atmosphere.

Also speaking today were representatives of Greece, Israel, Croatia, El Salvador, Russian Federation, Romania, Austria, Australia, Portugal, Chile, Spain, Germany, Netherlands, Poland, Malaysia, Belarus, Viet Nam, Slovenia, New Zealand, Iran, United States, and Slovakia.

The representatives of the Czech Republic and Sudan spoke in exercise of the right of reply.

The Sixth Committee will next meet at 10 a.m. on Tuesday, 1 November, to continue consideration of the report of the International Law Commission.

Remarks by President of International Court of Justice

RONNY ABRAHAM, President of the International Court of Justice, underscored his focus on the development and clarification of international environmental law, given the growing importance of concerns regarding respect for the environment, both on the international stage and in the disputes brought before the Court.  Although there were a number of international instruments imposing environmental obligations, no dispute had ever been submitted to the Court using that basis for jurisdiction.  Instead, the Court’s jurisdiction had been founded on declarations made by parties under the Optional Clause; on a special agreement; on provisions contained in treaties for the peaceful settlement of disputes; or on compromissory clauses found in treaties, which referred to the protection of the environment in an incidental manner only.

Outlining the Court’s recent contributions to the clarification of international law rules in regards to the protection of the environment, he said that such contributions were not limited to the decisions made in cases where the Court had to deal with issues directly related to the protection of the environment.  For instance, in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, the Court had recognized that “the existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is not part of the corpus of international law relating to the environment.”

He recalled that the first case in which the Court was asked to apply rules of international law relating to activities alleged to be at least potentially harmful to the environment was the case concerning Pulp Mills on the River Uruguay, filed by Argentina against Uruguay in 2006.  The Court had made it clear in its 2010 judgement that its jurisdiction was limited to examining the allegations of breaches by the Respondent of its obligations under the Statute of the River Uruguay.  However, the Court also explained that according to the relevant rules of treaty interpretation, the interpretation of the Statute had to take into account “any relevant rules of international law applicable in the relations between the parties”.  The Pulp Mills judgement was a substantial step towards the clarification of the regime applicable to States embarking on activities that had the potential to substantially affect the environment of another State.

However, he went onto say, it was not until the Court’s judgement on the merits of the joined cases concerning Certain Activities carried out by Nicaragua on the Border Area (Costa Rica v. Nicaragua) and the Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), issued in December last year that the Court was faced with the opportunity – or rather, the necessity – to further clarify the applicable rules of customary international law in the field.  That judgement, among other things, confirmed that general international law imposed on States obligations of a substantive as well as of a procedural nature when it came to activities carried out in their territory that might detrimentally impact the environment.

Turning to the tools that were available to the Court regarding specific challenges posed by the cases involving environmental issues, he said that the Court had always shown itself to be willing to adapt its methods of work in order to better fulfil its role in connection with such disputes.  The Chamber for Environmental Matters, created by the Court in 1993 to deal with environmental case falling within its jurisdiction, had never been used, which prompted the decision not to hold internal elections for the renewal of its composition in 2006.  However, its very creation bore witness to the Court’s willingness to use all the tools at its disposal to take careful account of the specific nature of cases involving environmental issues.

Furthermore, certain provisions of the Court’s Statute and Rules, although of general application, allowed account to be taken of the specific characteristics of disputes with an environmental dimension for an optimal handling of the claims, he continued.  An example would be the possibility for the Court to indicate provisional measures and the possibility for it to have recourse to certain methods for establishing facts, when necessary.  He highlighted the Nuclear Tests cases in which Australia and New Zealand had instituted proceedings against France in respect of a dispute concerning the legality of atmospheric nuclear tests conducted by the French Government in the South Pacific region.  Provisional measures were a particularly useful tool to ensure that a decision of the Court in a case involving allegations of environmental damage did not come at a time when serious and irreversible damage had already been caused. 

As for methods for establishing the facts, he said that two of those merited particular attention, namely, the possibility for the Court and the parties to appoint an expert, and a site visit by the Court.  Since the Court was a judicial organ and not a scientific body, the appointment of experts was particularly appropriate in environmental disputes because of the abundance of technical and scientific complexity of the factual data presented by parties in support of their positions.  The Court’s statute and rules recognized the right of the parties to have recourse to experts in presenting their cases, as for instance in the case concerning Whaling in the Antarctic (Australia v. Japan:  New Zealand intervening).

In addition, the Court could also decide to arrange for an expert opinion, as for instance it did in the case concerning Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua), he said.  Article 66 of the Court’s Rules also provided it the power to conduct a visit to the site to which a case related.  The Court had made use of that power only once in its history, in 1997, in the case concerning the Gabicikovo-Nagymaros Project (Hungary/Slovakia).  On a joint proposal by the parties, the Court had visited the site of the proposed barrage system on the Danube in order to collect evidence.

Interactive Dialogue

The representative of Iran said that he was pleased to hear about the subject of the Court’s jurisprudence regarding environmental issues.  Regarding the Marshall Islands and three nuclear State decisions that had received heavy criticism, he noted that the President of the Court had expressed a reservation on that matter.  He said it seemed to him that that President had joined the majority.  He asked whether the President did not think that the faithfulness of the Court’s members to the Court’s jurisdiction ran the risk of freezing its jurisprudence, thus preventing it from adapting to developments in international law.

Responding, Mr. ABRAHAM said, in regards to the specific case regarding the three petitions by the Marshall Islands against India, Pakistan and the United Kingdom, that he had nothing to add to what was written by the Court in its judgement and what he had said in his personal capacity in his statement.  Speaking generally on the continuity of jurisprudence, he said that any jurisdiction, whether domestic or international, was alive to the need for its jurisprudence to evolve when necessary. 

On the other hand, he said, judges sought to ensure there was continuity to their jurisprudence to avoid situations of legal uncertainty.  Parties who came before a judge based on a review of precedence should be able to have a minimum of certainty as to what was likely to be the result.  He also said there was the case-by-case challenge of deciding when priority should be given to jurisprudence or when it was time to change it to bring it in line with new requirements.  That was something which was discussed in depth.

The representative of France said that it was very useful to learn from the President of what had happened over the past year, as well as hear an overview international environmental law.  However, although it was not the right time or place to question decisions or judgements of the court, he said he wanted to offer a comment on another point in connection with what was discussed yesterday in the General Assembly, when States accepted the compulsory jurisdiction of the Court.  There was a central element in the Court exercising its jurisdiction.  Some States had accepted it as they had made the declaration while others had not.  He voiced some doubts about that, as many States had not made declarations accepting jurisdiction, but could fall within the jurisdiction of the Court anyway, for example by treaty.

The representative of Indonesia thanked the President, adding it was useful to report back to his Government what had been achieved. 

Statements on Cluster II

MARIA TELALIAN (Greece) said that the best approach to “Crimes against humanity” was to draw on standard provisions repeatedly used in widely ratified treaties dealing with other crimes.  However, while agreeing in general with the refinements made in wording of the draft articles, she proposed splitting the provisions in article 5 so that the paragraphs refer to distinct issues, as had been suggested.  Providing a detailed review of the articles, she also said that criminal legal responsibility of legal persons was not recognized in her country, but an array of administrative sanctions was available.  Given the divergence of views on the issue, she voiced her agreement with the solution suggested by the Rapporteur to use, in paragraph 7, wording from a parallel passage in the Optional Protocol to the Convention on the Rights of the Child.

Similarly, she said that the draft guidelines on “Protection of the Atmosphere” provided a solid foundation for the Commission’s work.  Reviewing individual draft guidelines, she emphasized that certain components of the duty to protect were not interchangeable.  She suggested clarifications in wording and welcomed the reference to the evolutive character of the due diligence obligation to protect the atmosphere, which was conditioned upon advances in scientific and technological standards.  She also emphasized that any decision based on the findings of the Environmental Investigation Agency (EIA) process had to be taken by the competent public authorities.

Turning to “Jus cogens”, she said that her country had been steadily supportive of the principle as an established element of contemporary international law, considering peremptory norms as an expression of the fundamental values of the international community.  Given changes in that matter, the International Law Commission would be of invaluable help to States for a better understanding of the legal implications of the concept.  She thus welcomed its inclusion in the Commission’s agenda, but cautioned that they approach it with due care.  Welcoming the methodology proposed by the Special Rapporteur, she said the input of the Commission was mostly needed in unchartered areas such as the implications of jus cogens beyond the law of treaties.

SHOSHI RESHEF MOR (Israel), on “Crimes against humanity”, welcomed effective codification of the matter, but warned that establishment of mechanisms for the enforcement of or adherence to a proposed treaty in that regard could potentially be abused by States and other actors to advance political goals.  Any such codification, including the list of crimes and their definition, should reflect customary international law on the subject and the widest possible consensus amongst States.  Any commission of such acts should cover crimes against humanity committed by States and non-State actors alike, and should address the specific issues related to the involvement of non-State actors.

With regards to “Jus cogens”, he said that while it was a widely-accepted doctrine of international law, the actual drafting of “lists” of jus cogens norms, whether illustrative or comprehensive, was premature.  A comprehensive list of peremptory norms was likely to give rise to more disagreements than agreements between States.  An “illustrative list” would also be ill-advised as it risked diluting the strength and binding nature of peremptory norms.  It might also0 generate no less disagreement among States as to what was to be included in such a list as well as the content of the norms so listed.  He suggested that it might be worth having the International Law Commission defer the process of identifying such norms at a later stage, and instead, at this point, focus on an examination of the legal consequences of a norm having jus cogens status.

ANDREJA METELKO-ZGOMBIĆ (Croatia), turning to “Crimes against humanity”, said that the international community still lacked a global legal instrument to prevent and punish those crimes.  She voiced her appreciation for draft article 5 and its intent to lay out States’ obligation to criminalize crimes against humanity in their national jurisdictions.  However, the language of paragraph 3 (a) and (b) should be adjusted to leave no doubt that a single instance of a crime against humanity could simultaneously engage the responsibility of more than one superior at different levels in the chain of command.  Also appreciated was the distinction being made between a military commander and other superior and subordinate relationships.  “We think this wording reflects well the current state of play in modern warfare and the fact that superior and subordinate relationships can come in different shapes and forms,” she said.

MARIA DEL PILAR ESCOBAR (El Salvador), addressing “Crimes against humanity”, said that since the Commission’s decision to include the topic, her delegation had highlighted the importance of beginning the process to elaborate a draft that would exclusively address crimes against humanity.  While the Rome Statute contributed decisively to determining the characteristics of that crime, an instrument of general scope on the topic had been outstanding for many years.  Of draft article 5, criminalization under national law, she agreed with the obligation of States to criminalize that type of offence under domestic legislation.

Turning to “Protection of the Atmosphere”, she urged the Commission to look into the Spanish version of the draft, especially the translation of guideline 1. On guideline 6, she said she was in favour of setting out a principle on the equitable use of the atmosphere.  However, the commentaries on that draft should look more closely at its legal implications.

On “Jus cogens”, she said that although she agreed with the general direction of the analysis, she had some concerns regarding the draft texts.  On draft conclusion 2, it was not necessary to establish a rule on the modification or derogation from the norms of international law as that was not the main topic being reviewed by the Commission.  On draft conclusion 3, while she saw the elements identified as pertinent, she said it would be useful if they were individually analysed in a more detailed fashion in subsequent reports.

MARIA A. ZABOLOTSKAYA (Russian Federation), speaking on “Crimes against humanity” said that while draft article 5 concerning criminalization under national law was basically worded to take into account the Rome Statute, she had reservations about the provision relating to the liability of legal persons.  Acknowledging that it was possible to adopt norms whereby legal persons might be held liable, she noted that such norms should be expressed with reservations to the effect that every State should take measures in accordance with their national legislation.  Also raising a question regarding draft article 7, she noted the provision calling States to carry out an impartial investigation.  That might suggest the need for “a special degree of impartiality” to investigate such a crime.

Turning to “Jus cogens”, she said the methodological approach taken by the Rapporteur and the Commission was “well-balanced and pragmatic”.  Stressing that the Commission’s work should be based on looking at the practice of States as well as the broader judicial practice and doctrines, she added that of course, the existing rules of treaty law, primarily the Vienna Convention and the application of that Convention should be given priority.  On the question of drawing up a list of jus cogens norms, she said that such a list would lead to endless discussion on why some norms were included and others were not.  Instead, attention should be focused primarily on the criteria for identifying the norms for jus cogens.

ELSADIG ALI SAYED AHMED (Sudan), focusing on “Crimes against humanity”, said that the reference in the Commission’s reports to the language and the legacies of various international criminal courts must be taken with caution.  Some of those courts had been established to subject countries defeated in war to the will of the victorious.  Such politicization and bias did not have any place in the laws of the international community.  In addition, some tribunals practiced a selective system of double standards and lacked legitimacy.  As for the adoption of the language in the Rome Statute, while it might seem ideal, it was also controversial; it was a contractual treaty among some States who had agreed to enter into such a treaty.  He also expressed concern about draft article 6 which created ambiguity and gave carte blanche to the practice of universal jurisdiction, expanding its scope in a unilateral manner.

Turning to “Protection of the atmosphere”, he said there should be no duplicate effort between the Commission’s work and other negotiations on the international forums such as the United Nations Framework on Climate Change.  Voicing support for the expression of the common interest of humanity in draft guideline 3, he stressed that the international community must take comprehensive and tangible steps to provide protection to the atmosphere because preserving the planet was indeed a common interest.  Furthermore, the expression about exercising due diligence in guideline 3 represented an obligation on States, but the phrase, “according to their abilities” defeated the purpose of that obligation with its loose wording.

Stressing the need for caution in the Commission’s work on “Jus cogens”, he said that in order for positive law rule to be successfully upheld as jus cogens, it should go through a comprehensive process.  The Commission must continue to gather more information on the practices of States.  Noting that the International Court of Justice had been cautious in its opinions on jus cogens, he said that although the terminology of jus cogens was used in the Vienna Convention, the actual content of its rules was still unclear.  Defining the nature and scope of those rules would be of benefit to all.

ALINA OROSAN (Romania) voiced support for the Commission’s approach to “Crimes against humanity” which did not depart from “the relevant provisions of relevant international conventions and statutes” in the field.  Also favoured was the inclusion of a provision which drew attention to the gravity of the offences within the scope of the draft articles and which required the imposition of appropriate penalties under criminal legislation.  Taking into account the importance of using all tools to tackle such offences, she also said she supported the inclusion of a paragraph which left open the possibility of a State to establish other jurisdictional grounds upon which to hold an alleged offender accountable, in accordance with national law.

Addressing “Protection of the atmosphere”, she said that the guidelines and their commentaries, as provisionally adopted, were a proof of the difficulties encountered regarding the limitations of the topic.  Guideline 3, for instance, seemed to be worded so as to avoid mentioning the precautionary principles.  However, the result was difficult to understand and even more difficult to apply.  With respect to guideline 4, while many activities might not have, individually, a significant adverse impact on the atmosphere, their cumulative impact could be significant.

Turning to “Jus cogens”, she called for an approach that did not depart from the relevant provisions of the Vienna Convention.  The draft conclusions were the appropriate format for the outcome of the Commission’s work on that subject.  While fully aware of the objections raised by some members of the Commission concerning the drawing up of an indicative list of norms that currently qualified as jus cogens, she considered the elaboration of such a list useful, either in the form of the annex to the draft conclusions, or in the commentaries.

AUGUST REINISCH (Austria) said of “Crimes against humanity” that he concurred with the majority of the draft articles.  He also voiced support for draft article 5, paragraph 4, which followed the wording of article 33 of the Rome Statute by stipulating that orders of a Government or a superior do not exclude criminal responsibility.  In that regard, such orders should be considered in the context of provisions on mitigating circumstances, to be elaborated at a later stage. 

Turning to “Protection of the atmosphere” he made note of guideline 6 on “equitable and reasonable use of the atmosphere”, and welcomed the respect for intergenerational equity.  However, he questioned how and by whom the interests of future generations would be identified, adding he would welcome future explanations in the commentary.

On “Jus cogens” he said that he was in favour of including an illustrative list of norms of that concept.  He underscored that with regard to draft conclusion 2, paragraph 1, he agreed with the proposal to distinguish between jus dispositivum and jus cogens at the outset, but suggested that the wording of “agreement of” before “States” in the first sentence of draft conclusion 2 paragraph 1 should be omitted.  As stated in the second sentence of the same paragraph, such change could take place not only by various forms of agreements but also by customary law.

MICHAEL BLISS (Australia), in regards to “Crimes against humanity”, said that the international community was grappling with a range of intense conflicts and situations in which such crimes were a constant feature.  The draft articles sought to complement, not replace, the existing framework in the Rome Statute.  He welcomed the draft articles’ emphasis on the importance of national laws and inter-State cooperation, adding that the Commission’s work on the topic would contribute to efforts to prevent and punish crimes against humanity.  His country had comprehensively criminalized crimes against humanity under its domestic law.

PATRICIA GALVAO TELES (Portugal) urged caution in the Commission’s study of “Crimes against humanity” so as to avoid conflict with the existing legal framework.  The language of the Rome Statute should remain a key reference tool for the Commission’s work in that area.  Commending work on the draft articles, she noted that not all States recognized the liability of legal persons.  The wording proposed for paragraph 7 of draft article 5 was a good basis for a solution, since it offered flexibility and gave discretion to States, although there might be merit in further studying the question.  It might also be necessary to adapt draft article 6 on the establishment of national jurisdiction, since the provision initially took into consideration cases where the offender was an individual and not a legal person.  Related judicial cooperation was important because it could contribute to the fight against impunity. 

Turning to the “Protection of the atmosphere”, she reaffirmed the importance of addressing the topic in a balanced, positive and scientifically-informed manner.  As environmental matters knew no borders, references to the joint actions of States in the draft guidelines could be more assertive.  In addition, there should be further consideration on whether the atmosphere could be legally addressed in the same way as transboundary aquifers or watercourses, and whether obligations related to protecting the atmosphere should be seen as erga omnes.

Finally, in considering what she called the vital area of “Jus cogens”, she called for a pragmatic and realistic tack.  The drafting of a list of norms that had reached the status of jus cogens could shed light on how to identify such norms, but the exercise might be premature right now, taking too much time and taking focus away from other ways of approaching the issue.

CLAUDIO TRONCOSO (Chile) said of “Subsequent agreements and subsequent practice concerning the interpretation of treaties” that the debate on the subject over the last three years had shown that it was possible to reach a measure of consensus.  In regards to an issue that had given rise to divergent opinions, as set out in draft conclusion 7, paragraph 3, he said that the text stated that it was presumed that the parties to a treaty, pursuant to a practice followed in the implementation of that treaty, intended to interpret the treaty and not to amend it or modify it.  The possibility of amending or modifying a treaty through the subsequent practice of the parties had not been generally recognized.  He said that was an acceptable approach to that issue.

Turning to “Crimes against humanity”, he noted that draft article 5 took up a number of different issues and set out the various measures that all States should take to ensure those crimes constituted offences under their criminal law.  He also stated his support for the wording of paragraph 3 of that draft article on command or other superior responsibility.

On “Jus cogens”, he said that, while there were no discrepancies regarding the acceptance and recognition of that concept’s rules at the international level, the complexity of it was evidenced by the debate that took place on how the draft should be worded.  It would be useful to revisit draft articles 1 to 3, as there was still no consensus among Member States on their wording.  With regard to the possibility of developing an illustrative list, further discussion was essential.  Once that list was developed, it could be argued that other rules that had not been included, and probably equally as important as those included, would be considered to have lesser status.

JOSÉ MARTÍN Y PÉREZ DE NANCLARES (Spain), speaking on “Crimes against humanity”, said he was aware of the real division within the Commission on that topic.  How to distinguish those crimes from genocide and war crimes was not easy.  However, the new draft articles, overall, were adequate and well balanced.  There were some issues that required greater analysis, for example military tribunals, amnesty, and extradition.  The report should also indicate why one option had been chosen over another when there were various legal possibilities.

Turning to “Protection of the atmosphere”, he noted that the reference in the preamble to “the needs of developing countries” did not reflect a balanced approach.  The Paris Agreement on climate change talked about “common but differentiated responsibilities” and the ILC’s draft should follow that instead.

On “Jus cogens”, he noted that discussions on the first three draft conclusions in the Commission confirmed what was already known, that however important the concept was, elaborating conclusions about it was difficult. He also noted that he could not see why draft conclusion 2 should refer to jus positivum.

ALEJANDRO ALDAY (Mexico) said that the draft articles on “Crimes against humanity” had a preventive focus which was consistent with international standards.  It also codified the direct international obligations of States to legislate and provide mutual cooperation.  He said he did not support the inclusion of the creation of a specific oversight body as that would duplicate the work of treaty bodies.  It was important the drafts complement not duplicate existing treaties.  Suggesting that the drafts should also include a prohibition against the death penalty, he added that those texts reflected the standards contained in the Rome Statute, with regard to the “responsibility of superiors.”  Furthermore, the draft articles should reflect the ongoing debate among international judges and academics about the type of non-military organization which could be considered responsible for crimes against humanity.

On “Protection of the atmosphere”, he said that atmosphere-contaminating agents were capable of traveling over large distances and crossing borders.  The legal scope of international cooperation to tackle such degradation needed to be clarified to guarantee its implementation.  The international community’s actions and initiatives should focus on protecting shared natural resources while allowing for sustainable development.  The fragmented approach occurring through multiple related conventions and norms showed the need for a condensed regulatory framework.  Noting that dialogue between the Commission and the scientific community would facilitate understanding of specialized issues, he warned that the “the development of the content of the guidelines” could exceed the mandate of the Special Rapporteur, leading to duplication of actions.

Addressing “Jus cogens”, he said that the report provided a great overview of the historic development of the concept and the future work of the Commission.  The ideal format to address the topic was conclusions with commentaries.  Given the imperative nature of those norms, the conclusions should take into account State practice as well the practice of international organizations.  A list of jus cogens norms could be useful but should be approached cautiously, with the knowledge that it was not exhaustive.

NATALIE Y. MORRIS-SHARMA (Singapore) said that she regarded the topic “Protection of the atmosphere” to be of the utmost practical significance, particularly as transboundary haze had posed a real and significant problem to the health and economy of Singapore and other countries in the region.  Singapore’s Transboundary Haze Pollution Act sought to deter errant companies by holding them accountable for the environmental and health impacts of their actions.  She said her Government was gratified to note that its domestic legislation had been considered in the Special Rapporteur’s third report, adding she looked forward to further dialogue with the Commission on that subject.  She also voiced support of draft guideline 3 on the “Obligation to protect the atmosphere”, and agreed with the view of the Special Rapporteur that the maxim of sic utere tuo ut alienum non laedas, (“use your own property so as not to injure that of another”) was well-established and accepted in inter-State relations.

OLIVER FIXSON (Germany), welcoming the work of the Commission on “Crimes against humanity”, said that a convention on that topic would foster international cooperation and provide impetus to the common aspiration of ending impunity for such crimes.  Recalling that his country was a founding member of the Rome Statute, he welcomed the clear orientation in the draft.  “Doing everything to ensure compatibility” with existing rules and institutions was crucial for the success of the project.  Furthermore, he counselled against proposing any other institutionalized mechanism, as that would provide a basis for different interpretations.

LIESBETH LIJNZAAD (Netherlands) said that in regards to “Crimes against humanity”, the definition in the Rome Statue should be used in the report.  In order to be effective, enforcement of laws on such crimes should take place at the national level.  That could be seen reflected in the principle of complementarity.  She expressed concern over the necessary criminalization of those crimes at national level, as the report indicated that only 54 per cent of Member States had adopted legislation that expressly dealt with crimes against humanity.  That must improve, she stressed.

Turning to “Jus cogens”, she said although she remained of the opinion that the subject should not have been included, she complimented the Special Rapporteur on his work.  However, she noted of its methodology that there was an abundance of opinio juris in the report, but it did not address how, in practice, States dealt with the notion of the principle and what complexities, if any, it gave rise to.  She underscored that the work of the Commission should take into account the practice of States.  On the question of a list of jus cogens norms, she said that the drafting of such a list was not desirable.

ANDRZEJ MISZTAL (Poland) said that the six new draft articles on “Crimes against humanity” could close the regulatory gaps in combating the most heinous crimes under international law.  Regarding the provisions relating to the right of States to establish national jurisdiction in draft article 6, it was necessary to clarify that the right should be exercised without prejudice to any applicable rules of international law.  It was worthwhile to consider introducing to the draft a victim-oriented approach, with particular regard to the most vulnerable category of victims, notably children.

Addressing “Protection of atmosphere”, he suggested inserting into the definition of “atmospheric degradation” the phrase “ambient air quality” which was a “term of art” in that field.  He also suggested replacing the last sentence of the commentary to guideline 3.

On “Jus cogens”, he expressed support for the approach taken by the Commission in recognizing the provisions of the Vienna Convention on the Law of the Treaties as the starting point of its considerations.  “The concept of regional jus cogens is in contravention, by definition, with the notion of norms jus cogens itself,” he said and therefore should not be accepted.

HARTINI RAMLY (Malaysia) said of “Crimes against humanity” that, with regard to draft article 5, her country imposed a mandatory obligation on State parties to criminalize the acts of those crimes under national law.  She also highlighted that the list of offences under subparagraph 1 of draft article 3 were partially covered as ordinary crimes under the Malaysian Penal Code.

Turning to “Protection of the atmosphere”, she noted that the insertion of the fourth preambular paragraph paid heed to the special situation of developing countries.  The participation of developing countries in use of the atmosphere should not be marginalized in any way for lack of a proper economic standing or technical assistance.

On “Jus cogens”, she cautioned against expanding the principle beyond the language of article 53 of the Vienna Convention on the Law of Treaties.  Against a backdrop of international law which was being developed through consent-based instruments, she underscored that it would be injudicious to expand on a principle that certain universal norms could bind States regardless of their consent.

THEMBILE ELPHUS JOYINI (South Africa) said work on “Protection of the atmosphere” was timely and important with the imminent entry into force of the Paris Agreement.  However, he expressed concern about the blanket exclusion of rules and principles that were an integral part of the law on such protection.  It was unclear how the Commission could study international law on atmospheric protection and ignore critical rules and principles like precautionary, preventive and polluter pays principles.  Of particular concern was the exclusion of the common but differentiated responsibility principle, which was a cornerstone of international law relating to protection of the atmosphere.  Furthermore, operative language in the guidelines’ text on the specific situation faced by developing States on protection of the atmosphere was required.

Turning to “Jus cogens”, he stressed the need for greater clarity on the functioning, content and consequences of the principle.  Such a study would allow for the identification of requirements for a norm and the effect of such norms on international obligations.  Clarity would prove invaluable on the international front and also be important for domestic matters.  On whether an illustrative list of norms should be produced, he said it would soon become obsolete and fail to aid international lawyers in providing tools to determine whether norms had achieved the status or not.  On the possibility of regional jus cogens, he said that could bring with it challenges to the universal nature of jus cogens and raise concerns about instances where the two might conflict.

GEORGE GALINDO (Brazil) said of “Crimes against humanity” that he concurred with the importance of including such crimes in domestic legislation.  A future convention could be beneficial for facilitating judicial cooperation.  Prominence should be given to the language already contained in the Rome Statute, including in relation to the non-exclusion of responsibility on account of a superior order.

Turning to “Protection of the atmosphere”, he focused on the proposed language for the preambular paragraph on awareness of “the special situation and needs of developing countries”.  Such language was based on the preamble of the 1997 Convention on the Law of Non-Navigational Uses of Watercourses.  The Commission should give careful consideration to language from the 2015 Paris Agreement on Climate Change, including the expression “common concern of humankind”.

On “Jus cogens”, he said of draft conclusion 3 that the reference to “fundamental values of the international community” was an extremely important one, as was the recognition that such norms were hierarchically superior to others and universally accepted.

With regards to “Provisional application of treaties”, he stressed that it was crucial that the Commission continued to give adequate consideration to the fact that some States were not in a legal position to apply provisionally any sort of treaty because of constitutional regulations related to the separation of powers.  That was the case with Brazil, which had therefore made a reservation to article 25 of the 1969 Vienna Convention in the Law of Treaties.

RUSLAN VARANKOV (Belarus), addressing “Immunity of officials from foreign criminal jurisdiction”, said that, in connection with limiting immunity in relation to a crime against humanity, what was important was ratione personae.  Subjective values and the practice of individual States were not sufficient for the codification of international law on such an important matter. 

He went on to say that within the context of the approach proposed by the Special Rapporteur, jurisdiction was based not on guilt but on being alleged to having committed an offence.  With regard to draft article 6, paragraph 3 on the scope of immunity and noting that ratione personae ended after a person left their post, he also said that a civil servant who had immunity should still have it after leaving their post.

Turning to the “Provisional application of treaties”, he said that article 46 of the Vienna Convention applied fully to that matter, and that he would submit more detailed comments in writing.

PHAM BA VIET (Viet Nam) voiced support for the drafting of a convention based on the draft articles on “Crimes against humanity”.  That would fill in the gaps currently existing in international human rights law and thereby address the issue of impunity.  While many of the provisions contained in draft articles 5 through 10 were modelled after those of the statutes of the International Criminal Court and similar bodies and were reflective of customary international law, the provision relating to the obligation to establish the liability of legal persons deviated from such norms.  That was yet to gain wide acceptance in international law.

Turning to “Protection of the atmosphere”, he said that, as a developing country, Viet Nam recognized the need to pay regard to the consideration of equity, a consideration that was consistent with other international instruments that dealt with the protection of the environment, such as the Stockholm Declaration and the Paris Agreement. He also voiced support for draft guideline 3 relating to the obligation to protect the atmosphere through effective prevention, reduction or control of atmospheric pollution and degradation.

Addressing “Jus cogens” he said that peremptory norms played an important role in international law, which was recognized under the 1969 Vienna convention on the Law of Treaties as well as the domestic legislation of many States.  Expressing concern about the inconsistencies presented in paragraph 2 of draft conclusion 2 and paragraph 2 of draft conclusion 3, he said that they caused confusion as to the relationship between jus cogens and international law.  In addition, he encouraged the Commission to conduct further studies to clarify the existence of regional jus cogens and the effect of persistent objection.

BORUT MAHNIČ (Slovenia), welcoming the new draft articles on “Crimes against humanity”, said that language in the draft articles regarding penalties should reflect the Rome Statute’s exclusion of the death penalty.  An examination of State responsibility would also be welcome.  He welcomed the progressive approach taken on the liability of legal persons, adding his support for the inclusion of paragraph 7, which was progressive but allowed States considerable flexibility.  Also supported was the emphasis on fair treatment of alleged offenders and a broad basis for the establishment of national jurisdiction.  Looking ahead to future monitoring mechanisms, he stressed the necessity that they be assessed for compatibility with existing mechanisms.

Welcoming progress made in addressing “Protection of the atmosphere”, he said he supported an approach that did not interfere with the ongoing negotiations of the existing regimes while at the same time reflecting current developments in international law.  Concerning the draft guideline on environmental impact assessment, he said that greater clarity on the phrase “significant adverse impact on the atmosphere” was required.  It would be useful to take into account situations where the impact was caused by several activities.  The decision not to include procedural aspects in the draft guidelines on impact assessment should be re-evaluated; there were far-reaching consequences of some of the items discussed.  Draft guideline 4, paragraph 5 also required clarification, as it implied that a significant impact occurred only when both atmosphere pollution and atmospheric degradation were cumulatively affected.

Welcoming also the first report on “jus cogens”, he said that he agreed with the enunciation of jus cogens norms as having a special character that reflected the common and overarching values of the international community.  In that light, he reiterated that allowing the notion of the persistent objector extend from customary international law norms to jus cogens norms would be incompatible with the nature of the latter.  For similar reasons, the notion of regional jus cogens was incompatible with jus cogens.   An indicative list of jus cogens norms based on the legal rationale would be a useful contribution.

DAVID DOLPHIN (New Zealand) said that with regards to draft article 5 of “Crimes against humanity”, those crimes had been incorporated into New Zealand criminal law.  Also included were provisions on individual responsibility, grounds for excluding responsibility, and superior orders.  He noted that the modes of individual criminal responsibilities under draft article 5 were consistent with articles 25 and 28 of the Rome Statute.  He also welcomed the flexibility under that draft article for countries to consider penalties in relation to their own criminal laws.

Turning to the topic of “Jus cogens”, he noted the consideration of whether there should be a list of illustrative norms.  If it was not considered appropriate at that time, he said he would remain open as to whether it would be useful at a later stage.

DJAMCHID MOMTAZ (Iran) focusing on “Jus cogens”, recalled the great British jurist Ian Sinclair’s famous work on the Vienna Convention which stated that jus cogens remained a mystery.  Noting various imprecisions in the definition given of the peremptory norms of the international law, he added that different international courts had confirmed the peremptory nature of the norms.  The International Criminal Court had confirmed the prohibition of torture in a 2012 judgement in a case between Belgium and Senegal, qualifying that norm as jus cogens, he pointed out, adding that the Court did not set forth specific criteria for identifying a rule of law as jus cogens.  “The mystery remains”, he said.  It was up to the Commission and the Rapporteur to unravel it.

He went on to say that it would not be wise to draw up a list of peremptory norms.  Such a list would be “a little rough” and could be changed at any minute in the event of the appearance of new peremptory norms.  However, identifying the criteria for determining the existence of such norms might be helpful to international courts and help avoid a plethora of peremptory norms that could undermine the stability of relations based on treaties.  The Commission should try to shed light on the meaning and scope of the criteria set forth in article 53 of the Vienna Convention, without calling into question those criteria.  The swiftness, the intensity and the widespread nature of the international reaction when peremptory norms were breached could be criteria for identifying them.

MARK A. SIMONOFF (United States), on “Jus cogens”, expressed concern, from a methodological viewpoint, that only limited international practice existed on important questions, such as how a norm attained jus cogens status and the legal effect of such status vis-à-vis other rules of international law and domestic law.  He also expressed concern in regards to draft conclusion 3, paragraph 2 proposed by the Special Rapporteur, noting that its meaning and purpose were unclear.  

On “Protecting the environment in relation to armed conflicts” he said that he did not believe the topic was useful for the Commission to address.  Any exercise to extract broad legal rules from environmental agreements concluded in particularized areas might not be feasible and, in fact, might potentially undermine carefully negotiated differences among regimes.  Such an exercise was likely to complicate ongoing and future negotiations and might inhibit State environmental progress. 

Therefore, he voiced his opposition to including that topic on the Commission’s agenda.  The most serious concerns related to the purported identification of obligations or requirements in contravention of the 2013 understanding that work on the topic would not impose new legal rules or principles on current treaty regimes.  He called upon the Commission to suspend or discontinue its work on the topic.

TLSU CHIA-CHENG (Tuvalu), speaking on the “Protection of the atmosphere”, said Tuvalu — as a small island State — was one of those most vulnerable to the effects of climate change.  Expressing satisfaction that the International Law Commission was moving forward with the five draft guidelines and a preambular paragraph, to be adopted by the Commission in 2016, the representative said Tuvalu’s dilemma was its small and low-lying islands of the archipelago.

The representative went on to say that Tuvalu had continued to advocate through bilateral and multilateral United Nations processes and dialogues that addressed the existential threat of sea level rise, the erosion of coastal land area and inundation of its food crops by sea water.  Noting that the country had been among the first to ratify the Paris Agreement, the representative stressed that the atmosphere was a limited natural resource shared by the whole international community.  Everyone carried a sacred responsibility to use it sustainably.  In that regard, the representative fully endorsed draft guideline 5 on sustainable utilization of the atmosphere and draft guideline 6 on equitable and reasonable utilization of the atmosphere.

TEVITA SUKA MANGISI (Tonga) expressed support for the adoption of an all-encompassing regime for the “Protection of the atmosphere” in order to avoid a fragmented approach.  There was a pressing need to continue to identify, develop and codify existing and emerging rules and principles of international law in an authoritative manner.  Welcoming efforts to identify specific obligations under draft guidelines 2, 3 and 4, he took note of the specific mention in draft guideline 3 of due diligence in taking appropriate measures to protect the atmosphere.  In that regard, he encouraged further elaboration on what those measures were and what type of activities they would apply to. 

He went on to say that on draft guideline 4, he wished to see the consideration of minor activities within the control of States that could have cumulative impacts on the atmosphere.  Calling for urgent and concerted efforts to tackle ozone layer depletion and organic pollutants, he said that, as a small island developing State, Tonga was particularly susceptible to pollution and climate-related challenges.  Therefore, he voiced his support for the identification of existing and emerging rules of international law to provide a foundation for the protection of the atmosphere.

METOD SPACEK (Slovakia), while voicing his support for the draft articles on “Crimes against humanity”, said that on the notion of criminal liability of legal persons, his country understood the merits, but found it challenging and requiring close follow up.  His Government had adopted new legislation on the topic in 2016, but crimes against humanity were not included in its scope.  Generally approving of the other draft articles, he also said he hoped that future reports would keep the same approach and direction.  The decision to handle the topic through the perspective of elaborating a convention on prevention and punishment of crimes against humanity from the very outset was the right one.

On the “Protection of the atmosphere”, he said that he was concerned whether the topic was at all suitable for a final outcome of the International Law Commission.  However, he welcomed the dropping of the draft guideline on the common concern of humankind and the substantial redrafting of the draft guideline on the obligation to protect the atmosphere to a more specific version related to due diligence.  At the same time, the drafting of guidelines on sustainable utilization, equitable and reasonable utilization was premature since the scope still lacked clarity. 

Welcoming the Commission’s work on “Jus cogens”, he agreed with the view that an indicative list of peremptory norms, consisting only of those norms which have been explicitly identified in the practice of international courts and the practice of States, would be of significant value and bring more legal certainty.  Nonetheless, he expressed doubts on the legal basis for the existence of regional jus cogens.  Peremptory norms reflected and enshrined fundamental values of the international community, but so do the principles of international law.  Their relationship and possible interconnection should therefore be further considered, as should the relationship between jus cogens norms and erga omnes obligation.

Right of Reply

The representative of the Czech Republic, in exercise of the right of reply, said a statement by a delegation had not described the historical role of the Tokyo Tribunal.  He noted that his nation had contributed to the prosecution of the main criminals of the Axis, and that the archives of the United Nations War Crimes Commission remained in the custody of the United Nations Secretary-General. He reiterated his full support of the War Crimes Commission in its work on the prosecution of crimes against humanity.

The representative of Sudan, in response to his counterpart, said that his statement referred to the Special Rapporteur’s report on crimes against humanity.  That was the source of his comments and where he took some of the text regarding the heritage of the Nuremberg and Tokyo tribunals.  He added that the winning countries were the ones to establish those tribunals.  Noting that he was in a legal setting, he said he fully respected the principles of the international community and the principle of fighting impunity.  He stressed that he had just been reminding delegates that, when quoting that heritage, they should be cautious.