As Sixth Committee Continues International Law Commission Report Review, Delegates Tackle Legal Effects of Provisionally Applied Treaties
As the Sixth Committee (Legal) continued its consideration of the report of the International Law Commission today, delegates delved into the topic, “Provisional application of treaties” and the related draft guidelines, spotlighting the legal differences between treaties that were provisionally applied versus ones that were in full force. (For background, see Press Release GA/L/3554).
The United Kingdom’s representative, while welcoming the extension of those draft guidelines’ scope to include treaties to which international organizations were a party, said that draft guideline 6 required further clarity on the distinction between the legal effect of a provisionally‑applied treaty, and one that was in full force.
Greece’s delegate also commented on that matter, noting that both the text and accompanying commentaries of guideline 6 should be enhanced to better reflect the position of the International Law Commission. Provisional applications produced the same legal effects as if the treaty were in force, unless otherwise agreed.
Romania’s delegate said that guideline 6 did not reflect the temporary nature of a provisional application. That was also the case with guideline 8, which addressed termination upon notification of intention not to become a party. The field of provisional application was both old and new, she observed, addressing not only the early period of treaty law codification, but emerging practice, as well.
A nation had a greater role in that field, India’s representative pointed out. Its political, social and legal system could be reflected in the manner in which it expressed consent to a treaty. In India, treaties did not automatically form part of the domestic law, for example. Their provisions became applicable only as a result of their acceptance by internal procedures.
Speakers also highlighted linkages between the draft articles on “Crimes against humanity” and the language of the Rome Statute, voicing divergent opinions on whether that connection should be elaborated upon.
Sudan’s representative, expressing concern over the attempt to create such a link, drew attention to the legal controversy regarding the International Criminal Court and “the big loopholes in the Rome Statute”. As no agreement had been reached on a specific definition of crimes against humanity, the draft articles should be independent of the Statute, particularly given that a large number of States had not acceded to it or ratified it.
However, Germany’s delegate said that, as his country was an ardent supporter of the International Criminal Court, he welcomed the clear orientation towards the language of the Rome Statute. Indeed, making every effort to ensure compatibility with that Statute would be critical to the success of the project, he said.
The Sixth Committee also considered the Commission’s proposals for future topics, with Slovenia’s representative underscoring the importance of “General principles of law” and “Evidence before international courts and tribunals”. He also proposed a further topic, that of the right to self‑determination.
Slovakia’s delegate also said that “General principles of law” had immense potential in clarifying open questions and helping better understand that concept. However, he said he was not convinced that the topic regarding evidence would be suitable for a successful outcome.
Also speaking today were representatives of Peru, El Salvador, Russian Federation, Thailand, Hungary, Chile and Poland.
The Sixth Committee will next meet at 10 a.m. on Wednesday, 25 October, to continue consideration of the first cluster of topics from the report of the International Law Commission.
Statements on Cluster I
IAIN MACLEOD (United Kingdom) said that he was broadly supportive of the draft articles on “Crimes against humanity”. There was currently no general multilateral framework governing the national prosecution of those crimes. Hence, there was benefit in exploring how an extradite‑or‑prosecute regime in respect of such crimes could operate. A future convention on those crimes would need to complement, rather than compete with, the Rome Statute. However, the expansion of the scope of work into issues such as civil jurisdiction and immunity would be unhelpful. It was important that a future convention be ratified widely, he said, adding that he welcomed the fact that the International Law Commission (ILC) had kept the draft relatively simple, along the model of earlier aut dedere aut judicare conventions.
Turning to the “Provisional application of treaties”, he welcomed the extension of the scope of the draft guidelines to include treaties to which international organizations were a party. With regard to draft guideline 6, further clarity was needed on the distinction between the legal effect of a provisionally‑applied treaty and one in full force.
He went on to say that, although the guideline indicated that the legal effect was the same, paragraph 5 of the commentary made it clear that provisional application did not “give rise to the whole range of rights and obligations that derive from the consent by a State or an international organization to be bound by a treaty or part of a treaty”. Although the substantive legal effects might be the same, the technical and procedural legal effects might be different, he said. That should be made clear in the body of the guideline and the relationship with the provisions of the Vienna Convention on the Law of Treaties further elaborated.
GUSTAVO MEZA-CUADRA VELASQUEZ (Peru), associating himself with Community of Latin American and Caribbean States (CELAC), said that the international community was confronting many great challenges to multilateralism. Expressing support for a future convention based on the draft articles, “Crimes against humanity,” he stressed that any future instruments should complement current legal mechanisms. Furthermore, the draft articles emphasized cooperation between States to prevent crimes before they were committed.
Turning to “Provisional application of treaties,” he said that there was no internal norm in his country directly relating to that matter. Highlighting draft guideline 7, he identified various decisions taken to provisionally apply treaties. The 2012 multilateral trade agreement between Peru and Colombia on one side and the European Union on the other side was one such example. Ecuador had recently joined that agreement, he noted, also stressing that provisionally applied treaties would terminate with entry into force, as in the case of the agreement between Peru and the Netherlands on capacity‑building workshops and the International Sugar Convention, among others.
V.D. SHARMA (India) observed that the report on “Crimes against humanity” addressed a variety of issues, including extradition and the relationship to competent international criminal tribunals. Considering the existing international mechanisms available to deal with the topic of Crimes against humanity, such as the International Criminal Court, the necessity of the Commission’s work on that topic was not clear. Any work on the topic could lead to duplication of efforts already undertaken in the existing regimes, he cautioned.
Turning to “Provisional application of treaties,” he added that a nation’s political, social and legal system had a greater role in that field, including the manner of expressing consent to a treaty. In India, because it was a dualistic State, treaties did not automatically form part of the domestic law. Their provisions became applicable only as a result of their acceptance by internal procedures, he noted.
MICHAEL KOCH (Germany), addressing the topic “Crimes against humanity”, said that a possible convention based on the draft articles would not only complement treaty law on core crimes, but would also foster inter‑State cooperation in investigation, prosecution and punishment. As an ardent supporter of the International Criminal Court, his country welcomed the clear orientation towards the language of the Rome Statute, he said. Making every effort to ensure compatibility with existing rules and institutions of international criminal law, in particular the International Criminal Court and its Statute, would be crucial for the success of that project. He welcomed the fact that, as a result of the first reading, the Commission was not proposing any additional institutionalized mechanisms under the draft convention, as that could create room for diverging interpretations.
BORUT MAHNIČ (Slovenia) said that he attached great importance to the two new topics in the Commission’s long‑term programme of work, “General principles of law” and “Evidence before international courts and tribunals”. He also proposed the inclusion of the topic regarding the right to self‑determination.
Turning to the subject of “Crimes against humanity”, he recalled the joint initiative of Argentina, Belgium, the Netherlands and Senegal for a new treaty on mutual legal assistance and extradition, which would cover the crime of genocide, war crimes, and crimes against humanity, also known as the MLA Initiative [Towards a Multilateral Treaty for Mutual Legal Assistance and Extradition for Domestic Prosecution of the Most Serious International Crimes]. While he supported the Commission’s work on the topic of crimes against humanity, he said there was particular merit in the work of that initiative. Both efforts were complementary and should continue to be developed side by side.
On the “Provisional application of treaties”, he said that the guidelines were an appropriate result of the work of the Special Rapporteur and the Commission, and had the aim of assisting States and international organizations in their treaty practice. The guidelines required some refinement and possibly some additions, he said, adding that he was not convinced that the overreliance on the Vienna Convention on the Law of Treaties terminology and its restatement in the guidelines was effective in providing useful guidance.
HECTOR CELARIE (El Salvador), associating himself with CELAC, said that much progress had been made on the topic, “Crimes against humanity”. On draft article 5, he noted the need to know the obligations of States. On paragraph 2 of that draft article, among the measures contemplated, he said he only saw commission, attempting, ordering, aiding and abetting to such crimes. That did not cover the case of perpetration by means in the commission of crimes against humanity. Although that point had appeared in the comments, it was not covered in the draft articles. The International Law Commission should not fail to regulate perpetration by means.
Turning to “Provisional application of treaties”, he said he attached importance to the interpretative work that would be carried out at the next stage of the draft guidelines. Interpretation should be in line with the content of existing norms such as the Vienna Convention of the Law of Treaties of 1969 and the Convention on the Law of Treaties between States and International Organizations of 1986, as well as other norms of international law.
As to other decisions and conclusions, he noted the topics recommended for inclusion and reaffirmed support for the Commission’s work in the codification and development of international law. He also welcomed the incorporation of the two new topics, “General principles of law” and “Evidence before international courts and tribunals”.
MAXIM MUSIKHIN (Russian Federation), noting that States were being urged to shoulder increasing obligations, stressed that the main subjects of international law were States and it was important for the Commission to focus on their practices and he urged ILC to practice “healthy conservatism”.
Turning to “Protection of atmosphere” and “Protection of the environment in relation to armed conflicts”, he said that both topics had been under consideration for a while. There was insufficient practice by States and existing international instruments were regulating the relevant relations between States sufficiently. Adding general principles to that topic was unlikely to lead to legal certainty, he said, expressing doubts on the expediency of further work.
Regarding “Immunity of State officials from foreign criminal jurisdiction,” he expressed regret that the Commission had considered the matter of exceptions to immunity before studying procedural aspects of immunity. Establishing procedural rules could do away with a whole range of arguments for exceptions. However, it appeared that an objective approach had given way to a subjective desire in the Commission’s work on the topic. Artificially creating an international legal norm was neither codification nor progressive development.
On “Peremptory norms of general international law”, he welcomed the change in title from jus cogens as that would help determine the scope of the topic and commended the Commission’s approach to make article 53 of the Vienna Convention the basis of its work. However, draft conclusion 2 was a source of concern. The central concept of international community would lead to legal uncertainty. He also voiced his disagreement with draft conclusion 7, paragraph 2, according to which the norm of jus cogens could be identified through recognition by a large majority of States, as opposed to all States.
Addressing the topic, “Succession of States in respect of State responsibility, he said that it was not clear whether work on that issue could be productive. The Commission was inclined to say that a norm of non‑succession existed, but the codification of international law was possible only if a norm of succession existed. The judicial decisions identified by the Special Rapporteur could not prove a move away from a general norm of non‑succession. Furthermore, noting a reference to the Soviet Union in the report, he said that the Russian Federation was a continuation of the Soviet Union and continuation should not fall under the topic.
Turning to “Provisional application of treaties,” he referred the Commission to questions previously raised by his delegation, such as the specific nature of the temporary application of international treaties. Finally, he also welcomed the inclusion of “General principles of law” and “Evidence before international courts and tribunals” in the Commission’s work.
MARIA TELALIAN (Greece), on “Crimes against humanity”, said that the inclusion of the draft on non‑refoulement had to be studied in the light of the well‑established obligations of States under that principle deriving either from major conventions or the case‑law of regional and international judicial bodies. She also echoed concerns over the extensiveness of provisions in the “long‑form” model of the draft material on extradition and mutual legal assistance, which risked overshadowing the main topic of the draft articles.
The section proposed for the topic of mutual legal assistance was not a sufficient remedy, she continued. In addition, there was currently an initiative aimed at negotiating an instrument dealing exclusively with extradition and legal assistance in relation to various core crimes under international law. Across those draft articles, there were unexplained departures from the wording of international instruments on which the draft articles were modelled.
Turning to “Provisional application of treaties”, she said that it was still not clear how the declarations made by a State or international organizations that were accepted could provide the basis for an agreement on provisional application. Given the voluntary and exceptional nature of provisional application, the commentary, if retained, needed to include concrete examples of State practice and explanations that would help avoid confusion with the regime of unilateral acts of States.
On draft guideline 6 on legal effects, she said that the text and commentaries must be enhanced to better reflect ILC’s position that provisional application produced the same legal effects as if the treaty were in force, unless otherwise agreed. Welcoming the inclusion of draft guideline 11 in the form of a “without‑prejudice” clause, she reiterated support for the further development of model clauses tailored to fit the flexible nature of provisional application.
Expressing concern over new topics in the Commission’s programme of work, she stressed that ILC should first complete in a timely manner topics already under consideration rather than prioritize issues such as “General principles of law” and “Settlement of disputes to which international organizations are parties” that were most relevant to current developments.
METOD ŠPAČEK (Slovakia), on “Crimes against humanity”, commended the decision to handle the topic with a sharp vision to elaborate a convention on prevention and punishment of crimes against humanity. He also took note of the Commission’s decision to transmit the draft articles to Governments for comment. He also said he was pleased to see that draft article 5 containing the implementation of the non‑refoulment principle was included as part of a broader concept of the obligation of prevention. Reaffirming the application of that fundamental principle could indeed play a significant role in strengthening the prevention mechanism of the future convention. Meanwhile, the inclusion of draft article 12 on measures regarding victims, witnesses and other persons reflected the global trends of exercising the victim‑oriented international justice in international crimes.
Turning to “Provisional application of treaties”, he said that the topic, could help States in harmonizing some particularities in their respective practices. While commenting on specific draft guidelines, he emphasized that it seemed redundant to define the scope of the guidelines. It would be sufficient to keep the purpose defined in draft guideline 2 and merge it with draft guideline 1. Noting the overlaps in draft guidelines 3 and 4, he added that draft guideline 8 required further elaboration. Exclusion of the possibility to terminate or even suspend the provisional application of the treaty without having the intention not to become a party would restrict the broader rights of States existing before giving their final consent to be bound by a treaty.
On including the topic, “General principles of law” in the long‑term programme of the Commission, he said he remained convinced that work on that topic had immense potential in clarifying open questions and helping better understand that concept. The consideration of the topic was a natural development following successful work of the Commission in the field of law of treaties. Regarding the Commission including “Evidence before international courts and tribunals” in its long‑term programme, he said he was not entirely convinced that the topic might be suitable for a successful and useful outcome. The main engagement of the Commission with the States must be during the consideration of the report in the Sixth Committee or through written comments and not during the session of the Commission.
VILAWAN MANGKLATANAKUL (Thailand), on “Crimes against humanity”, said that developing a convention on the basis of the Commission’s draft articles would help facilitate national prosecutions and strengthen international cooperation. While she supported, in principle, the obligation to prosecute or extradite in draft article 10, it was still unclear whether that obligation was or was not part of customary international law. Furthermore, since the draft articles were modelled on provisions of existing treaties, which addressed different types of crimes, whether or not they were compatible with the provisions related to crimes against humanity remained a subject of debate.
Turning to other decisions and conclusions of the Commission, she welcomed the timely inclusion of “General principles of law,” which was the third principal source of international law. Expressing support for the Commission’s continued engagement with other international regional organizations, including the Asian‑African Legal Consultative Organization, she thanked ILC members for supporting the International Law Seminar, which had enabled young international lawyers, especially those from developing countries, to familiarize themselves with the work of the Commission.
OMER DAHAB FADL MOHAMED (Sudan), acknowledging the valuable work performed by the Commission since 1947, said that the fight against impunity was a noble part of the administration of justice and it was the primary responsibility of the national judicial systems.
Regarding the draft articles on “Crimes against humanity,” he expressed concerns about the attempt to create a linkage with the Rome Statute. Drawing attention to the legal controversy regarding the International Criminal Court and “the big loopholes in the Rome Statute,” he said that no agreement had been reached on a specific definition of crimes against humanity. Opinions on that had diverged even in the Preparatory Conference of the Rome Statute.
Furthermore, the draft articles should be independent of the Rome Statute as a staggering number of States had not acceded or ratified it, he continued. It was also premature to consider an international instrument on crimes against humanity, given that there were several international conventions on the same topic, he said, calling on the international community to avoid fragmentation, and focus on quality, not quantity.
REKA VARGA (Hungary), on “Crimes against humanity”, said that strong legal measures were needed to prevent those crimes and to punish the perpetrators. The codification of such measures could help States. Concerning extradition, she noted that she was not certain whether the draft articles themselves could provide a basis for extradition.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, she said that the international community should find a balance between sovereign equality of States and the interest of the international community as a whole to punish the most serious crimes. Such crimes should be regarded as exceptions to immunity. She welcomed draft article 7, which set out the exceptions to the immunity of foreign officials.
She then commented on “Succession of States in respect of State responsibility”, pointing out that that topic had been particularly relevant in the 1990s and might have contemporary relevance in current times. The scope of its examination should include trends and case law in current practice and historical context, among other matters. The topic was of interest and merited the attention of the Commission. The outcomes might contribute to address the gaps in rules already codified in the Vienna Conventions.
Commenting on “Provisional application of treaties”, she said that in Hungary, provisional application did not represent a fast track approach, as the same rules applied to the provisional application of treaties.
ALINA OROSAN (Romania) observed that the Commission’s session must have been “somewhat dramatic” since members had to use a voting procedure that was seldom, if ever, used for adopting certain draft texts. Acknowledging the complexity of the topic and important differences in approach, she stressed that the Commission should generally work on the basis of consensus, especially when adopting the final outcome of the work on a topic.
Turning to “Crimes against humanity,” she said that the rich material in the draft articles provided a possible basis for a global convention. Strengthening inter‑State cooperation was key to fighting impunity. Stressing that a new instrument should not conflict or undermine existing international law, she voiced support for the Commission’s approach of not departing from the relevant provisions of the Rome Statute. She also reiterated support for those provisions that drew attention to the gravity of the crime.
On “Provisional application of treaties,” she aligned with the European Union’s statement, noting that the field of provisional application was both old and new. On the one hand, it had been already addressed in the early period of treaty law codification. On the other hand, emerging practice continued to expand and deepen it significantly. Expressing support for the approach of including States and international organizations in the scope of the guidelines, she highlighted some aspects that required further clarification. In guidelines 3 and 4, the commentaries did not provide enough sources for the obligations mentioned therein. Furthermore, in their current form, guidelines 6 and 8 did not reflect the temporary nature of provisional application.
Also expressing support for the inclusion of “General principles of law” in the work of the Commission, she said work on that topic should focus on practical relevance, so that “we did not end up with too theoretical a product”. In regards to “Evidence before international courts and tribunals”, she said that was a technical topic, and voiced her reluctance to have it included in the long‑term programme of work.
CLAUDIO TRONCOSO REPETTO (Chile) voiced his support with draft article 5 referring to non‑refoulement, noting that it was more important than ever to establish that States were duty‑bound not to deliver, return or extradite persons who might be victims of crimes against humanity in another State’s territory. Regarding draft 12 on victims, witnesses and other persons, there was merit in both the duty of protection to be exercised by States and also in establishing the right to reparation for material and moral damage that might have been caused to victims individually or collectively.
He went on to welcome the detailed and thorough content of draft article 14 on mutual legal assistance, noting that failed investigations into crimes against humanity were marked by poor cooperation and excessive bureaucracy in States required to provide such assistance. There was also merit in granting competence to the International Court of Justice as per article 15, although paragraph 3 of that draft gave States the option to decline that competence. That gave flexibility to the draft, allowing States to opt for other means of resolving conflicts of interpretation or implementation.
Turning to the “Provisional application of treaties”, he noted that while draft guideline 5 referring to commencement might seem self‑evident, it was appropriate to specify the moment when that occurred. Draft guideline 10, addressing States’ internal law or rules concerning international organizations’ competence to agree on said provisional application, was fully in line with the Vienna Conventions and with well‑known principles of international law.
Regarding draft guideline 11 which referred to agreement to provisional application with limitations deriving from internal law of States or rules of international organizations, he voiced his support in so far as it granted the right to States and international organizations to agree to the instrument itself or to the provision application of the treaty or to part of it, with limitations deriving from the internal law of the State or rules of the organization. That gave flexibility to the draft guidelines, he noted.
ANDRZEJ MISZTAL (Poland), in regards to “Crimes against humanity”, welcomed the new draft article on “victims and witnesses” and suggested supplementing that provision with the definition of victim, determination of the scope of reparations, and guaranteeing the right to establish and participate freely in organizations with the aim to assist victims and protect their rights. In addition, a victim‑oriented approach should be introduced with regards to the most vulnerable category of victims, notably children.
Referring to the “Provisional application of treaties”, he said that a comprehensive analysis of the Vienna Convention on the Law on Treaties was necessary in order to provide clearer guidance. Turning to the future work of the Commission, he reiterated his proposal for a new topic of work, “Duty of non‑recognition as lawful a situation created by a serious breach by a State of an obligation arising under a peremptory norm of general international law”.