Delegates Call for Further Study of Third Cluster Topics, as Sixth Committee Continues Reviewing International Law Commission Report
Continuing its review of third‑cluster topics from the International Law Commission’s report, Sixth Committee (Legal) delegates pointed to several aspects which they said needed further work or were cause for concern.
Taking up “Immunity of State officials from foreign jurisdiction”, the representative of the United States, addressed the question of territorial immunity, saying he did not understand the requirement that the defendant be in a forum State’s jurisdiction at the time of the act in order for that State to exercise jurisdiction. For example, if death or injury were caused by anthrax, he questioned why it would make a difference if it had been mailed from a different State, such as the official’s State or a neighbouring State.
Addressing possible exemptions from immunity, Germany’s representative noted that history had shown the international community that there were crimes where immunity could not be upheld. Her country had been at the forefront of that historical experience. Exceptions were justified because of the grave nature of the crimes covered. However, she would continue to advise against the expansion of exceptions beyond what might be supported by State practice and opinio juris.
Delegates also urged that more work be done by the Commission on several topics included in the third cluster. The representative of Viet Nam, commenting on “Provisional application of treaties”, said that while he concurred with the idea contained in guideline 8, the extent of legal consequences arising out of a breach of obligation required further study.
Greece’s representative also urged the Commission to consider in its work on “Immunities of State Officials from foreign criminal jurisdiction” the relationship between immunity and several other areas, including impunity, the gravity of crimes of concern to the international community, and the right of access to justice and reparation for victims.
As the Committee took up “Protection of the environment in relation to armed conflicts”, several speakers delved into the inclusion of indigenous peoples in the draft texts, an issue that the Commission had debated about, specifically if the link between the draft texts and the topic was close enough to justify the link to indigenous peoples.
The representative of the Netherlands said that although indigenous peoples had a special relationship with the land, it seemed insufficient reason to include them under that topic.
Similarly, the representative of Mexico said that the protection of the rights of indigenous communities did not require specific rules because they were protected under international law.
On the other hand, the representative of Slovenia said that, because of the special placement that had been given to the protection of the environment of indigenous peoples in the context of armed conflict, their status merited additional reasoning.
Also speaking today were representatives of Thailand, Malaysia, Turkey, Ireland, Argentina, Japan, Iran, Mongolia, Viet Nam and Israel.
The representative of Cyprus spoke in exercise of the right of reply.
The Sixth Committee will next meet at 10 a.m. on Thursday, 3 November to continue consideration of the report of the International Law Commission and take up the Report of the Host Country Committee.
Statements on Cluster III
LIESBETH LIJNZAAD (Netherlands) said of “Protection of the environment in relation to armed conflicts” that she considered the temporal division of “before,” “during” and “after” in the application of principles to be useful and logical. The Commission had had a debate addressing the linkages between all of the draft principles and the topic, and whether it was close enough to justify the link with peace operations and indigenous peoples. Although indigenous peoples had a special relationship with the land, it seemed insufficient reason to include them under that topic, she said.
Turning to “Immunity of State officials from foreign criminal jurisdiction” she underscored that the issue of whether and which exceptions existed for State officials remained highly controversial. While the fight against immunity and the need to hold perpetrators to account was important, she said she was not convinced by the way it was used to justify an exception to immunity. The question was one of forum, of procedure; many factors determined whether immunity would be granted before a domestic court, but a risk of resulting impunity was not one of them.
Under normal circumstances, in the State for which a State official performed his or her functions, ample remedies should be available, she continued. Also, the bar to the exercise of jurisdiction through the granting of immunity did not become substantive, as opposed to procedural, by the mere fact that no criminal prosecution would take place. A decision to grant immunity did not contain pronouncements on whether a State official was guilty. It was only about the availability of a particular forum and as such a point of procedure that should not enter into the merits of the case.
On “Provisional application of treaties,” she raised the issue of the methodology of the work, particularly with regard to whether or not to draw conclusions based exclusively on analogy. While she acknowledged that it might be useful, she shared the words of caution expressed by members of the Commission that the conclusions arrived at should be supported by underlying State practice.
PRIM MASRINUAN (Thailand), addressing “Protection of the environment in relation to armed conflicts”, said any relevant environmental treaties could co‑exist with the law of armed conflict. Having draft principles was appropriate and timely, and would raise the visibility of environmental impacts of armed conflicts. Cultural heritage, although part of the natural environment, was out of the scope of that topic, as its protection was extensively regulated through other international norms, including the United Nations Educational, Scientific and Cultural Organization (UNESCO) instruments and frameworks. She encouraged continued consultations with agencies directly involved in post‑conflict situations, such as the International Committee of the Red Cross (ICRC) and the United Nations Environment Programme, in forming a coordinated response.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, she said the delicate balance between maintaining stable international relations and protecting State equality, on the one hand, and fighting impunity and providing redress for victims, on the other, must be carefully addressed. She expressed her support for the approach of distinguishing ratione materiae and ratione personae scopes of immunity in the analysis. A clearer distinction between what the law was and what it should be, especially relating to different exceptions proposed in draft article 7, would help the Committee better understand that sensitive issue.
KERSTIN PÜRSCHEL (Germany) said that the Special Rapporteur’s report had addressed the question of possible exemptions from immunity and had proposed a new draft article 7 on the matter. The Commission had not had the opportunity to discuss that topic in due manner and the report remained incomplete. History had showed the international community that there were crimes where immunity could not be upheld, she pointed out, adding that her country had been at the forefront of that historical experience. Yet, the exception was justified because of the special nature of the crimes concerned, which were of such gravity that not bringing in the perpetrators to justice would be unacceptable and had the potential to undermine the credibility of the international legal order.
She said she would continue to advise against attempts to expand exceptions beyond what could be supported by State practice and opinio juris. Questions of immunity were politically highly sensitive and required fine balancing of the sovereign rights of the States concerned. Furthermore, she was not convinced that the Special Rapporteur’s report addressed those concerns in a satisfactory manner, she said. Among other things, there was a stated lack of consensus among States on the issue of “exceptions and limitations” to immunity, while at the same time, a “clear” trend towards such exceptions had been identified.
MARIA TELALIAN (Greece), addressing “Protection of the environment in relation to armed conflicts”, said draft principle 2 should be slightly rephrased. Preventive measures should not be limited to minimization of damage, but also extend to avoidance of damage. Regarding draft principle 9, the Committee should examine to what extent general principles of environmental law were applicable in times of armed conflict and how they interacted with the jus in bello rules. The Commission should also provide guidance on “widespread, long‑term and severe damage” in draft principle 9, paragraph 2, as well as in articles 35, paragraph 3, and 55, paragraph 1 of the 1977 Additional Protocol I [of the Geneva Convention of 1949 and relating to the Protection of Victims of International Armed Conflicts].
Turning to “Immunities of State Officials from foreign criminal jurisdiction”, she said the systematic approach of immunity suggested by the Special Rapporteur should be endorsed and followed by the Commission in the next session. The Commission should also consider the relationship between immunity and responsibility; immunity and impunity; gravity of crimes of concern to the international community; legal dimension that had acquired the fight against impunity for those crimes; States’ conventional obligation to establish broad jurisdiction for some of them; and the right of access to justice and reparation for victims. It should also look into progress over the last 25 years in the institutionalization of international criminal justice, the interconnection between national and international courts and the established division of competences in the fight against impunity.
On “Provisional application of treaties”, she said draft conclusion 10 was narrowly formulated. It did not take due regard of what actually might occur in practice. There were situations where recourse to provisional application relied on a treaty provision which provided that the treaty be provisionally applied to the extent permitted by domestic law. Draft guideline 10 should be broadened to address such situations, as they were different from the impermissible invocation of internal law. It was also time for the Commission to undertake a comprehensive study of practice relating to provisional application of treaties to provide more concrete results.
RAHMAT MOHAMAD (Malaysia), addressing “Protection of the environment during armed conflict”, said the three temporal phases —— pre‑conflict, during conflict and post‑conflict —— were artificial and therefore it would become hard to establish separate rules applying to them. The debate on whether there should be a distinction between “environment” and “natural environment” was self‑defeating; work on the topic should not be overly prescriptive. In order to produce effective guidelines on such protection, necessary linkages must be drawn with established principles on rules of engagement, proportionality, necessity and reprisals, among other things. Recognizing the fact that indigenous communities were particularly affected by, and had a significant role to play in, post‑conflict remediation efforts, he asked for further analysis of the environmental consequences of armed conflict.
Regarding “Immunity of State officials from foreign criminal jurisdiction”, he said that in the report there were discrepancies in the characterization of a particular act as a limitation, especially in the case of international crimes in each State. The proposed draft article 7(1) should be studied further, since there were differences on the definition of offences, in particular torture, enforced disappearances, corruption and crimes that caused harm to persons or property. Further study was also required on cooperation between States and international tribunals, he said, noting that cooperation between States and international organizations or tribunals also played a vital role in resolving criminal cases that involved two or more States.
As for the topic “Provisional application of treaties”, he said his country’s domestic law did not provide for any express provisions that prohibited or allowed for the provisional application of treaties. The agreement for the provisional application of a treaty must either be expressly provided in the treaty itself or it might also be established by means of a separate agreement. A provision that enabled States to form a separate agreement should be provided explicitly in the main treaty itself. Further deliberation on that issue was necessary. If recourse to alternative sources should be in provisional application of treaties, the analysis of legal effect should be guided by the result of an unequivocal indication by the State that it would accept provisional application of a treaty, as expressed via a clear mode of consent.
PHAM BA VIET (Viet Nam), addressing “Protection of the environment in relation to armed conflicts”, said that in armed conflict the belligerent party who introduced harmful substances should search and destroy any remnants of war that it had used, and should also bear the responsibility to restore the environment. He noted concern over the inclusion of rights of indigenous peoples in draft principle 4 as it was of little relevance to the context of armed conflicts. In addition, as the definition of indigenous peoples was handled differently from State to State, their inclusion might cause more problems than those resolved.
Turning to “Immunity of State officials from foreign criminal jurisdiction” he noted that the criminality of an act did not affect whether an act was performed in an official capacity. A distinction should be made between international crimes and serious international crimes.
On “Provisional application of treaties” he said that while he concurred with the idea contained in guideline 8, the extent of legal consequences arising out of a breach of obligation required further study. He also welcomed the decision to request the preparation of a memorandum in respect of treaties which provide for provisional application that had been registered in the last twenty years with the Secretary‑General.
DANIELA HORVAT (Slovenia) said that the topic of “Protection of the environment in relation to armed conflicts” required a comprehensive appreciation of the specificities of environmental law and its interplay with the laws of armed conflict. With regard to the Special Rapporteur’s report, it should have included an analysis of relevant materials for each proposed draft principle in order to provide a greater understanding of the basis of the proposed wordings. She welcomed the inclusion of the obligation to take effective measures in all temporal phases as required by international law. Noting the special placement that had been accorded to the protection of the environment of indigenous people in the context of armed conflict, she said that the status accorded merited additional reasoning.
On “Immunity of State officials from foreign criminal jurisdiction”, she reiterated that while immunity was based on the principles of the sovereign equality of States, non‑intervention and the interest of States in maintaining friendly relations, the principle should also be addressed against the backdrop of legal humanism and the fight against impunity, “in particular through the prism of the progressive development of international law”. Agreeing with the view that no limitations or exceptions to immunity ratione personae existed under current customary international law, she also welcomed that contemporary international law permitted limitations or exceptions to immunity rationae materiae from foreign criminal jurisdiction with respect to most serious international crimes.
Concerning “Provisional application of treaties”, she said she agreed that articles could apply by analogy to a provisionally applied treaty. However, the fact that there seemed to be a general agreement within the Commission that a provisionally applied treaty should be applied as if in force did not necessarily imply that all articles relating to treaties in force apply to provisionally applied treaties in the same manner.
IPEK ZEYTINOGLU OZCAN (Turkey), on “Provisional application of treaties”, noted that although his country’s law did not allow for such application, the Commission’s study provided a useful source of information and guidance both for States that resorted to provisional application, as well as for those whose legislation did not permit it. It would be useful if the issue of draft guideline 7 were dealt with in more depth and a comparative analysis of conventional practice would assist in clarifying the matter. It was also not clear whether draft guideline 10 referred to the fact that a State may not invoke provisions of its internal law as justification for its failure to perform a treaty, or whether it concerned provisions of internal law regarding competence to agree to a treaty provisionally. Regarding the Special Rapporteur’s suggestion on the registration regulation revision, it would not be appropriate to use the Vienna Convention as a sole reference, because not all Member States were party to it.
Turning to “Identification of customary international law”, he said that State practice should be taken into account in determining the existence and content of the rules of customary international law. Elements ascertaining the formation of such rules must be carefully evaluated. Regarding draft conclusion 4, a high threshold should be set on the evidentiary value of international organization practice. Paragraph 2 should be drafted in a more cautious manner, using the phrase “may contribute” rather than “contributes”. That term would also be more consistent with paragraphs 2 and 3 of draft conclusion 12.
Regarding “Jus cogen”, he reiterated his reservations and objections on the concept during the Vienna Convention negotiations. Its inclusion was one of the reasons his country had not become a party to that instrument. The Commission should adopt a prudent approach regarding that principle. Furthermore, some draft conclusions had already been formulated, which was premature at the current stage. The outcome of the work should remain an analysis and general overview of related conceptual issues.
Regarding paragraph 39 of the Special Rapporteur’s report, he pointed out the irrelevance of South Cyprus’s contestation of the Treaty of Guarantee’s validity on the basis of article 4 of the Treaty being in violation of peremptory norms. That Treaty’s provisions, and its provided rights and obligations for the Guarantor Powers, could not be construed as an example of either confirming or violating peremptory norms or jus cogens, and statements by individual States could not alter that fact. He stressed his disagreement with the appropriateness of the example itself and believed that section of the report required amendment.
STEPHEN TOWNLEY (United States), on “Protection of the environment in relation to armed conflicts”, expressed concern that several draft principles were phrased in mandatory terms, purporting to dictate what States “shall” or “must” do. Such an approach was not appropriate for a project that was purporting to assert principles. Draft principle 8 introduced entirely new substantive legal obligations in respect to peace operations that could not be found in existing treaties, practice or case law. Similarly, draft principle 16 expanded the obligations under the Convention on Certain Conventional Weapons to mark, clear or destroy explosive remnants of war to include “toxic or hazardous” remnants.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, among other things, he said that the Special Rapporteur’s report did not address officials covered by “special rules of international law”, including diplomatic, consular, international organizations staff and officials on special mission. As well, draft article 7 did not specify why immunity did not apply to certain crimes. It was arguable that corruption‑related crimes, which were presumably motivated by the defendants’ self‑interest, would not be considered official acts. However, it would be helpful to understand the conceptual basis for making immunity not available for certain crimes.
With respect to territorial immunity, he said he did not understand the basis for requiring that the defendant be in the forum State’s jurisdiction at the time of the act for that State to exercise jurisdiction. For example, he questioned why it would make a difference if anthrax, which caused death or injury in the forum State, had been mailed from some other State, such as the official’s State or neighbouring State.
On “Provisional application of treaties”, he said that it gave rise to a legally binding obligation to apply the treaty or provision in question. While generally in agreement with most of the draft guidelines, he noted that draft guideline 4 was an exception. Contrary to article 25 of the Vienna Convention on the Law of Treaties, that guideline might suggest that “a State’s legal obligations under provisional application may be incurred through some method other than the consent of all concerned States”. In that regard, it was crucial to revoke that guideline to avoid interpretation. In addition, draft guideline 7 was being studied as to whether it meant that all the rules set forth in the Vienna Convention applied to the provisional application of a treaty.
JUAN SANDOVAL MENDIOLEA (Mexico) said that “Protection of the environment in relation to armed conflict” had become increasingly important, but noted that doubts had been expressed whether there was enough State practice on the topic. Conventional humanitarian law provided sufficient protection to the environment, he said, suggesting that the principles be limited to international armed conflicts. Furthermore, the protection of the rights of indigenous communities did not require specific rules, as their rights were protected in international law.
On “Immunity of State officials from foreign criminal jurisdiction”, he said that the report’s analysis of limitations and exceptions had been “extraordinarily interesting”, and given its importance, his delegation’s written commentaries on the topic would be submitted later.
Turning to “Provisional application of treaties”, he noted that it was important that the topic not be understood and analysed as operating in a self‑contained regime, as it was related to provisions of the Vienna Convention.
ANNE-MARIE O’SULLIVAN (Ireland), addressing “Immunity of State officials from foreign criminal jurisdiction”, said that, because the debate at the present session was preliminary in nature, her comments on it would be preliminary as well. She noted that the proposed definition of an “act performed in an official capacity” in draft article 2(f) was general in nature, and she welcomed the acknowledgement in paragraph 10 of the commentary that such acts must be identified on a case‑by‑case basis. Also supported was the Commission’s decision to set down the criteria to be examined, namely, that the act had been performed by a State official, was generally attributable to the State and was performed in “the exercise of State authority.”
Turning to “Provisional application of treaties” she reiterated that further analysis should be undertaken as to the precise nature of the legal effects created by provisional application and the extent to which they differed from the effects created by the entry into force of the treaty. She also welcomed the decision to request the Secretariat to prepare a memorandum analysing State practice in respect of treaties which provided for provisional application deposited or registered with the Secretary‑General in the last twenty years.
JOSÉ LUIS FERNANDEZ VALONI (Argentina), in regards to “Crimes against humanity”, said that discussions on that topic could continue to develop without running the risk of contradicting agreements already reached by the international community. Cooperation between all States was essential.
Turning to “Protection of the atmosphere” he said that his country had been participating in international efforts on climate change, and he welcomed the fact that the Commission had taken into consideration the needs and situations of developing countries. He also said he was pleased that the Commission might take up the question of the interplay between the law of the atmosphere and international law in other areas.
On “Immunity of State officials from foreign criminal jurisdiction”, he said he understood that future efforts to take the matter forward should strike a balance between the codification of international law and the need to take into account the experience gained from national and international courts alike in the prosecution of atrocities.
YUKI HIROTANI (Japan) said the topic of “Protection of the environment in relation to armed conflicts” included both international and non‑international armed conflict and that it was difficult to identify principles that applied to both. The draft principles attempted to address post‑conflict environmental protection management, but it had been difficult to define generally applicable rules on post‑conflict measures.
On “Immunity of State officials from foreign criminal jurisdiction”, he said that the report did not provide sufficient evidence that the categories of certain international crimes, territorial tort exception and corruption were established categories where immunity did not apply. In‑depth analysis on the relation between immunity ratione personae and immunity rationae materiae was necessary, as it was difficult to present coherent international norms on the topic without prior discussion. The law of immunity was one of the fundamental principles of international law, and the international community must deal with the issue of its limitations and exceptions with caution.
ALI GARSHASBI (Iran) said that he would provide at a later day written comments on “Crimes against humanity” and “Protection of the atmosphere.”
Turning to “Protection of the environment in relation to armed conflicts” he noted the appropriateness of the Special Rapporteur’s approach, particularly with regard to the temporal basis of that topic. Concerning post conflict obligations, he said he looked forward to provisions on responsibility and rehabilitation on the part of those parties whose acts had caused or lead to damage to the environment. “As a country with sad experience of an imposed war,” Iran understood the importance of that subject, he stated.
On “Immunity of State officials from foreign criminal jurisdiction”, he noted that immunity of State officials while performing official acts was a direct consequence of the sovereign equality of States. His understanding of acts performed in an official capacity was that it included all acts performed by State officials in their official capacity, either in office, or once they had left office.
In regards to “Provisional application of treaties”, he said he understood that scarcity of practice hindered the work of the Special Rapporteur in that area.
SUKHBOLD SUKHEE (Mongolia) said of “Identification of customary international law” that he believed its draft articles would further contribute to the application of that law as an important source of public international law.
Turning to “Immunity of State officials from foreign criminal jurisdiction,” he said that the question of limitations and exceptions was legally complex and raised issues that were politically sensitive and important. The report had taken a broader perspective than merely considering international crimes. It also had offered an analysis of other crimes, such as corruption.
In regards to the issue of “Succession of States” with respect to State responsibility, he said he hoped that it would be covered by the Commission in the near future. He also added that such consideration would fill the gaps that remained after the completion of the codification of succession of States in respect of treaties and in respect of State property, archives and debts, as well as in regards to nationality and State responsibility.
SHOSHI RESHEF MOR (Israel) said it unnecessary to develop new principles regarding “Protection of the environment in relation to armed conflict” as it was sufficiently addressed under various rules and standards of the Law of Armed Conflict. Sharing the Commission’s view that the proposed definition of “remnants of war” was too broad, she also said that there was no justification for broadening the definition. The principle had sought to treat the environment as a civilian object which would merit protection under the rule of distinction during armed conflict. That was inaccurate and impractical, and did not reflect the applicable legal standards.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, she said that there were no clear norms of international law regarding exceptions or limitations to immunity, nor was there a trend to the development of such a norm. She voiced her objection to the substance of the draft article and to procedurally creating exceptions or limitations to immunity without further study of relevant State practice.
Regarding “Provisional application of treaties”, she said that Israel’s de facto practice did not generally permit the provisional application of treaties, although there could be exceptional situations in which it could be permitted. Those cases included situations in which the internal requirements for the approval of the treaty were lengthy or where there was an urgent need for the application of the treaty, such as treaties of great political and economic significance.
Right of Reply
VASILIKI KRASA (Cyprus), in exercise of the right of reply, said that to all intents and purposes in the international community, and in line with the 1960 Treaty of Establishment, as well as relevant Security Council resolutions, the Republic of Cyprus was the only legitimate authority on the island of Cyprus. She referred States to Cyprus’s statement on chapter 9 of the Commission’s report as being relevant with regard to that issue.
Remarks by Special Rapporteur
MARIE JACOBSSON, Special Rapporteur for “Protection of the environment in relation to armed conflicts” thanked States who had contributed to that topic, either formally or informally. She said she would not comment on States’ contributions at the present moment, but would study them and pass on her reflections to the next Special Rapporteur. Expressing hope that the Commission would elect a new Special Rapporteur as soon as possible during its meeting in Geneva in 2017, she also underscored that progress on the topic would not have been possible without the support of Commission members, the Secretariat, translators and interpreters and other United Nations entities such as United Nations Environment Programme (UNEP) and International Committee of the Red Cross (ICRC), as well as research by academics and pro bono work by lawyers.