International Law Commission Chair Highlights ‘Landmark Year’, While Sixth Committee Delegates Urge Inclusion of New Topics
As the Sixth Committee (Legal) took up the report of the International Law Commission, speakers tackled the first of three clusters of topics, commending progress made while highlighting the working methods of the Commission and underscoring the importance of including the international legal implications of sea‑level rise in its future programme of work.
Eduardo Valencia-Ospina, Chair of the International Law Commission, introducing that body’s report (document A/73/10), said it was a landmark year for the Commission as it celebrated its seventieth anniversary. Addressing the first cluster of topics in the report, which includes “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” and “Identification of customary international law”, he also noted that a new topic had been included in the programme of work. That topic, “General principles of law”, would be taken up at the Commission’s next session.
In addition, he noted that two new topics had also been included in the long‑term programme of work: “Universal criminal jurisdiction” and “Sea‑level rise in relation to international law”. These would not be included in the active programme of work until States had commented on the advisability of that inclusion, he said.
He also said that the adoption of the 13 draft conclusions on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” was the result of 10 years of work. Those draft texts delineated the scope, basic rules and definitions of the conclusions, before going into detail regarding the possible effects of subsequent agreements and subsequent practice in interpretation.
The Commission had also adopted 16 draft conclusions on “Identification of customary international law”, he said. The conclusions included the laying out of the basic approach to the identification of international law, as well as the assessment of evidence for the two constituent elements of customary international law.
The representative of Nicaragua commended the Commission and Special Rapporteurs for their work on “Identification of customary international law”, noting that the conclusions could serve as a practical guide. She also outlined areas where changes could be made, noting that the current language on international organizations could be altered to reflect their different roles and different levels of importance.
Japan’s delegate, while commending the work on "Identification of customary international law", also observed a certain regional imbalance on materials collected by the Secretariat and expressed hope that materials on the topic will be updated in the future. He also stressed the importance that the Commission select practical topics for discussion that reflect international concerns. It might be useful, he said, to have a Sixth Committee session devoted to the exploration of possible new topics.
Poland’s delegate, also highlighting the inclusion of new topics, said that the Commission should consider subjects that reflect not only new developments in international law, but also those of pressing concern. With that in mind, he suggested that it should consider taking up the use of the Internet in terms of international law, particularly examining the behaviour of States in cyberspace.
However, the representative of France cautioned that the large number of issues in the Commission’s programme prevents detailed examination by States. It might be better to return to the Commission’s older practice and examine a more limited number of topics, rather than expecting States to deal with an annual report with multiple topics in a few days.
Nonetheless, the representative of Gambia, speaking for the African Group, commended the Commission’s decision to include new topics, such as the international legal implications of sea‑level rise in its long‑term programme of work. Sea‑level rise threatened many States in the African Group and the issue has not been addressed sufficiently with regards to its legal implications.
In a similar vein, the representative of the Marshall Islands, speaking for the Pacific Island Forum Group, stressed the importance of including that topic. Sea‑level rise has an effect on maritime zones, from which States generate significant revenues and the issues resulting from statelessness due to climate change are also relevant. The issue raises complex questions in international law, she said, adding that the Commission should move the topic to its current programme of work urgently.
Also speaking today were representatives of El Salvador (speaking for the Community of Latin American and Caribbean States, Bahamas (speaking for the Caribbean Community), Denmark (also speaking for Finland, Iceland, Norway and Sweden), Austria, China, Italy, Peru and Singapore, as well as the European Union.
The Sixth Committee will next meet at 10 a.m. on Tuesday, 23 October, to continue consideration of the first cluster of topics from the report of the International Law Commission.
Introduction to International Law Commission Report
EDUARDO VALENCIA-OSPINA (Colombia), Chair of the International Law Commission, said that it was a landmark year for the Commission as it celebrated its seventieth anniversary. In addition, the year was also exceptional as the Commission held the first part of its session in New York and not at its seat in Geneva. He noted he would address the first cluster of topics in chapters IV and V in the Commission’s report (document A/73/10) and also provide an overview of chapters I to III and XII and XIII.
As summarized in chapter II, the Commission concluded the second reading of the topics “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” and “Identification of customary international law” by adopting two full sets of draft conclusions and commentaries, he said. It also concluded its first reading on “Protection of the atmosphere” and “Provisional application of treaties”, with the adoption of two full sets of draft guidelines with commentaries. It also considered “Peremptory norms of general international law (jus cogens)”, “Protection of the environment in relation to armed conflicts”, “Succession of States in respect of State responsibility” and “Immunity of State officials from foreign criminal jurisdiction”.
A new topic was also included in the programme of work of the Commission, “General principles of law”. The consideration of the subject would begin at the next session, he said. The Commission also included two new topics in its long‑term programme of work, “Universal criminal jurisdiction” and “Sea‑level rise in relation to international law”. This does not mean these topics are on the active programme of work; such a decision will only be taken after States have commented on the advisability of placing these topics on the programme.
Turning to the “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said that the Commission’s adoption of the draft conclusions represented the culmination of 10 years of work. The Sixth Committee now had before it a complete set of 13 draft conclusions with commentaries. These draft conclusions, which are based on the 1969 Vienna Convention on the Law of Treaties, examine the role that subsequent agreements and subsequent practice play in the interpretation of treaties. He highlighted several areas of the draft conclusions, noting that part one contains one draft conclusion on the scope of the draft conclusions. Part two contains four draft conclusions that address the basic rules and definitions. Draft conclusion 2 in part two is included to situate subsequent agreements and subsequent practice as a means of treaty interpretation within the framework of the rules set forth in articles 31 and 32 of the 1969 Vienna Convention.
Part three deals with general aspects and contains five draft conclusions. Draft conclusion 6 is on the “Identification of subsequent agreements and subsequent practice”, and confirms that subsequent agreements and subsequent practice, as a means of interpretation, must be identified, he said. Draft conclusion 7 addresses the possible effects of subsequent agreements and subsequent practice in interpretation. It describes how subsequent agreements and subsequent practice may contribute to the clarification of the meaning of a treaty.
Part four addresses specific aspects and contains three draft conclusions. Draft conclusion 12 on “Constituent instruments of international organizations” refers to a particular type of treaty, namely constituent instruments of international organizations and the way in which subsequent agreements or subsequent practice shall or may be taken into account in their interpretation. In accordance with article 23 of its statute, the Commission recommends that the General Assembly take note in a resolution of the draft conclusions and commend them to the attention of States and all who may be called upon to interpret treaties.
Turning to “Identification of customary international law”, he said that the Commission adopted, on second reading, a full set of 16 draft conclusions and commentaries. The 16 draft conclusions are divided into seven parts. Part one contains a draft conclusion that deals with the scope of draft conclusions. Part two sets out the basic approach to the identification of international law and contains two draft conclusions. Draft conclusion 3 concerns the assessment of evidence for the two constituent elements of customary international law. It offers general guidance for the process of determining the existence and content of a rule of customary international law from the various pieces of evidence available at the time of the assessment.
Part three offers more detailed guidance on the first of these two constituent elements of international law, “a general practice”, he said. It contains five draft conclusions. Draft conclusion 4 specifies whose practice is to be considered when ascertaining the existence of a general practice when determining whether a rule of customary international law exists, as well as the role of such practice. Part four on “accepted as law (opinio juris)” concerns the second element and comprises two draft conclusions. Part five addresses the significance of certain materials for the identification of customary international law and comprises four draft conclusions. Draft conclusion 11 concerns the significance of treaties for the identification of customary law, while draft conclusion 12 addresses the role that resolutions adopted by international organizations or at intergovernmental conferences may play in the determination of rules of customary international law.
Part six examines the concept of persistent objector and part seven focuses on particular customary international law in regard to the draft conclusions. Each part contains a single draft conclusion. Draft conclusion 15 on the persistent objector clarifies that when a State has persistently objected to an emerging rule of customary international law, and maintains its objection after the rule has crystalized, that rule is not opposable to it. Finally, while rules of general customary international law are binding on all States, draft conclusion 16 deals with the specific cases of particular customary international law applying among a limited number of States. Having adopted the draft conclusions on identification of customary international law, the Commission decided to recommend that the General Assembly take note in a resolution of the draft conclusions on identification of customary international law, annex the draft conclusions to the resolution, and ensure their widest dissemination, he said.
Statements on Cluster I
CARLA ESPERANZA RIVERA SÁNCHEZ (El Salvador), speaking for the Community of Latin American and Caribbean States (CELAC), said that in the past 70 years, the International Law Commission has produced a number of instruments on various topics of international law, from the initial drafting of the Nuremberg Principles to the current development of draft articles on crimes against humanity and other relevant issues in the framework of general international law. Reiterating appreciation for the decision to hold the Commission’s seventieth session this year in New York and in Geneva, she described the exchange of views and discussion between the members of the Sixth Committee and the Commission as rich and fruitful.
Taking note of the two sets of conclusions adopted in second reading by the Commission under the topics “Subsequent agreements and subsequent practice in relation to the interpretation of treaties“ and “Identification of customary international law”, she thanked the Special Rapporteurs for their hard work. Two additional products were adopted in first reading, the “Guidelines on Protection of the Atmosphere” and the “Guide to Provisional Application of Treaties”. Stressing the need for Member States to continue to support the work of the International Law Commission, he invited its members to continue improving relations with the Sixth Committee so that the General Assembly can process and use the invaluable results of these debates.
AMADOU JAITEH (Gambia), speaking for the African Group, expressed appreciation for the order and structure of the report which made it easier for delegations to navigate the Commission’s work. However, there is room for improvement, he said, calling on the Commission to present the report in a more user‑friendly way. The new era, marked by the seventieth session, should be mapped with new ways of doing things at the Commission, an example of which would be to simplify the report and add more information in the summary of the Commission’s report without necessarily expanding the length of the report. He also proposed that the Commission and the Secretariat move the International Law Week to the months of February and March to attract “participators over spectators”.
Given the density of the report, sufficient time is needed to stimulate active participation, he said, applauding the exemplary work of the Special Rapporteurs and the Drafting Committee. Congratulating the Commission on its seventieth anniversary, celebrated in its usual fashion with intellectual events held in Geneva and New York, he encouraged the Commission to hold similar events in other parts of the world. Taking note of the Commission’s decision to include new topics such as “Sea‑level rise” in its long‑term programme of work, he said that the threat posed by sea‑level rise affected many States in the African Group. The international community has not addressed the legal implications of sea‑level rise in a comprehensive manner and the Commission must examine the topic with urgency, he said.
SHEILA GWENETH CAREY (Bahamas), speaking for the Caribbean Community (CARICOM) and associating herself with CELAC, commended the proposal to include the topic “Legal implications of sea‑level rise” on the Commission’s long‑term programme. The issue must be addressed comprehensively and as a matter of priority.
She voiced concern over the scope of the topic “Protection of the atmosphere”, adding that the Commission should avoid narrowing the scope of topics in such a manner which might negatively impact the outcome’s relevance and utility to Member States. She welcomed deeper exploration of issues including inundation of low‑lying coastal areas and consequences of Statehood under international law should the territory and population of a State disappear.
Regarding “Universal criminal jurisdiction”, she said that certain crimes pose fundamental threats to the international community and that she was aware of the disparity with which international justice is applied. The extraterritorial application of domestic law by a State is contrary to the principle of universal jurisdiction, unless permitted under international law. Welcoming the inclusion of the topic on the Commissions programme of work, she underscored the need to develop discussions on the matter.
Turning to the item “Protection of the atmosphere”, she welcomed the recognition of the special vulnerability of small island developing States and noted that CARICOM is at the forefront of combating climate change, addressing social and economic impacts of sea‑level rise and impacts of loss and damage.
With regards to “Peremptory norms of general international law (jus cogens)”, she reiterated her support for the Commission’s undertaking to set out criteria for the identification of such norms. She encouraged further analysis of the meaning of “fundamental values”, particularly as regards the identification of a universal understanding of such values.
She welcomed the Commission’s report on “Protection of the environment in armed conflict” and said that environmental obligations protect a collective interest and are owed to a wider group of States beyond those involved in armed conflict or occupation. She added that she looks forward to the Commission addressing the application of draft principles to non‑international armed conflicts and other matters including compensation for environmental damage.
She went on to commend the Commission’s examination of the topic “Succession of States in respect of State responsibility”, noting that the topic currently applies to a few States. However, further codification and development of the topic will allow for gaps to be addressed.
On the topic “Immunity of State officials from foreign criminal jurisdiction”, she encouraged continued exploration of procedural issues pertaining to immunity, such as the stability of international relations. Further consideration must be given to the issues of jurisdiction of the fight against impunity and the rights of State officials. The Commission should continue deliberations of the subject while maintaining the distinction between immunity ratione personae and ratione materiae.
AMATLAIN ELIZABETH KABUA (Marshall Islands), speaking for the Pacific Island Forum Group, said that she is pleased with inclusion of sea‑level rise in the Commission’s long‑term programme of work. It is a subject of increasing importance. The impact on the group’s communities is complex. She expressed concern that salinization is already threatening crops, while coastal erosion will result in more storm surges and natural disasters. Sea‑level rise also has an effect on maritime zones from which States generate significant revenues and also have close cultural connections. The issues resulting from statelessness due to climate change are also relevant, with atolls being directly submerged.
While low‑lying islands are already feeling the impact, more than 100 States are more likely to be affected by sea‑level rise, she continued. The International Intergovernmental Panel on Climate Change predicts that average global sea levels could rise one meter by 2100. This will happen in the Pacific region sooner and to a greater extent than other parts of the world. Urgent action is therefore required to study the international law implications of sea‑level rise. The phenomenon raises complex questions in international law. She called on the Commission to move the topic of sea‑level rise to its current programme of work in order to examine the international law implications as a matter of extreme urgency.
LUCIO GUSSETTI of the European Union, taking up “Subsequent agreements and subsequent practice”, said two recent judgements of the Court of Justice of the European Union demonstrate the bloc’s reliance on the rules of article 31 of the Vienna Convention as reflecting customary international law when interpreting international agreements to which the European Union is party. The applicability of articles 31 and 32 to constituent instruments of international organizations is without prejudice to any relevant rules of the organization. Finally, on decisions adopted within the framework of a Conference of State Parties, he welcomed the broad approach adopted by the Commission by including Conferences of the Parties to a treaty whose parties are not only States.
Turning to the topic “Identification of customary international law”, he welcomed the Commission’s recognition of the ever‑growing role of international organizations on the international scene. He pointed to recent judgements of the bloc’s Court of Justice to indicate that the court often involves aspects of public international law, including customary international law. He also welcomed considerations of the practice of international organizations when concluding treaties as a way for international organizations to contribute to the formation, or expression, of rules of customary international law. This reflects the mutual influence and interaction between treaties and customary international law, he said.
MICHAEL BRAAD (Denmark), also speaking for Finland, Iceland, Norway and Sweden, welcomed both the draft conclusions on “Subsequent agreements and subsequent practice” and the inclusion of its definition. Underscoring that any agreement under article 31 of the Vienna Convention requires acceptance of the parties, he turned to draft conclusion 9 and said that the weight of a subsequent agreement or a subsequent practice in terms of interpretation depends on its clarity and specificity. Noting that his group has commented on the issue of pronouncements by expert treaty bodies, he expressed agreement with the formulation of draft conclusions on this point.
Turning to “Identification of customary international law”, he congratulated the Commission on the adoption of the draft conclusions. Welcoming the successful completion of work on this important topic, he expressed satisfaction that his group’s views received careful consideration. He also added that he was pleased with the understanding of customary international law in the conclusions and that “a balanced outcome was achieved”. The draft conclusions complement the Commission’s earlier work on “Sources of international law”, making it more accessible as well as a valuable guidance for legal practitioners. Lauding the Commission for maintaining conclusions as the final form, he noted that the scope is limited to identification without focusing on its relationship to jus cogens.
The programmes conducted to mark the seventieth anniversary of the Commission were excellent and reflected the changing landscape of international law, he said. Noting the considerable additional planning, he thanked the staff of the Office of Legal Affairs. Regarding the decision to recommend the inclusion of sea‑level rise in its long‑term programme of work, he welcomed the decision but called for a prudent approach given the topic’s complexity and the fact that State practice is still evolving.
HELMUT TICHY (Austria), commenting on “Subsequent agreements and subsequent practice”, observed that paragraph 1 of draft conclusion 5 — addressing possible contributions of domestic courts to subsequent treaty practices — was amended to include reference to “the exercise of judicial function as a form of subsequent practice”. It is preferable to have a specific draft conclusion on decisions of domestic courts, as pointed out by the Special Rapporteur who acknowledged that “domestic court decisions may constitute State conduct in the application of a treaty”.
On “Identification of customary international law”, he said that the Commission found a good drafting compromise in draft conclusions 4, 10(2) and 12, which acknowledged the importance of international organizations as contributors to the formation of customary international law by their own acts. Wording in draft conclusion 13 still distinguishes between decisions of international courts and tribunals and national courts as far as their relevance for the determination of customary international law is concerned.
Turning to “Universal criminal jurisdiction”, he stressed that there is an obvious need for a profound analysis of the topic. Such analysis will avoid misunderstandings. It is necessary to elaborate a definition of the concept and its scope. Further, the principle can be based on treaties and customary international law. “The concept of universal criminal jurisdiction of States is to be clearly distinguished from the jurisdiction of international courts and tribunals,” he noted.
XU HONG (China) said that the Commission is now confronted with fresh challenges in the selection of topics and working methods. As a subsidiary body of the General Assembly, the Commission should bear in mind the goal of serving Member States when selecting topics.
He went on to say that earlier this year the Commission produced draft conclusions on two important topics. The topic “Identification of customary international law” is one that his Government has been closely monitoring. Noting the adoption of the conclusions, he emphasized that customary international law is an important source of international law and its identification must be done in a rigorous manner.
On the topic “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said that the concept in the draft conclusion refers to subsequent practice as defined in article 31(3) of the Vienna Convention, as well as the subsequent practice that is not referred to in that article but is a supplementary interpretation.
This year, the Commission decided to include two topics in its long‑term programme of work, including sea‑level rise, he continued, adding that his focus is on the changes in circumstances resulting from sea‑level rise. The gap between these changes and existing international law should be examined.
FRANÇOIS ALABRUNE (France), commending the Commission on the adoption on the second reading of the draft conclusions on “Subsequent agreements and subsequent practice”, said that the commemorative events marking the seventieth anniversary were an opportunity to highlight the role of the Commission as well as the number of challenges facing it. The quality of the relationship between the Commission and the Member States within the Sixth Committee is a decisive factor for the success of the Commission. While the Commission has contributed to the conclusion of significant international conventions, recently its results have been more limited.
It is not sufficient for States to consider the Commission’s report merely during International Law Week, he continued, adding that delegations need to be prepared for these discussions. This requires “a great deal of upstream in‑depth work”. Further, the large number of issues in the Commission’s programme prevents detailed examination by the States. The Commission would be well advised to return to its older practice and examine a limited number of topics. Stressing that it is unrealistic to expect States to deal with an annual report with multiple topics in a few days, he said the Commission’s working methods should be based on in‑depth development of international practice and not be inspired by one doctrine or single legal culture.
While welcoming the adoption of the draft conclusions on “Subsequent agreements and subsequent practice“, he added that the Commission’s work on “Identification of customary international law” could indeed help practitioners, in particular national judges confronted with the customary nature of an international norm. Calling for flexibility in the use of these conclusions, he pointed out that they are not articles. Spotlighting the plight of a domestic national judge examining the practice of 190 States expressed in 100 different languages, he said that this degree of flexibility should be underscored in the text of any General Assembly resolution concerning the conclusions.
In that regard, he said that an Assembly resolution deciding to simply take note of in a general manner the work of the Commission can lead to an ambiguous legal status for the drafts of the Commission. That is not propitious to legal security and predictability, he stressed, adding that the drafts could be useful as a United Nations publication, thus guaranteeing that those who use the drafts can determine what is the real legal authority.
ANDREA TIRITICCO (Italy), spotlighting the Commission’s 70 years of fundamental contributions to the codification and progressive development of international law, commended it for the interesting programmes held to celebrate the occasion, especially the interaction between several members of the Commission and the delegations.
Turning to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties“, he expressed support for the decision concerning the language of conclusion 5, paragraph 1 on “conduct as subsequent practice”, acknowledging that the rules governing attribution of conducts for purposes of international responsibilities and the one concerning attribution of conducts for purposes of subsequent practice are not the same and should not be confused.
Turning to “Identification of customary international law”, he added that the draft conclusions are intended to identify ways in which the existence and content of rules of customary international law are to be determined, with respect to the two constituent elements of State practice and opinio juris. They represent a very useful tool available to all States and all those who are confronted with issues of interpretation of international law. At the same time, in assessing the existence and content of customary international law, a certain margin of appreciation should be recognized to the interpreter, in light of the multiplicity of expressions of State practice that may be relevant to that effect.
ANGEL HORNA (Peru) said that the work of the Commission is important in the face of increasing challenges to multilateralism. It is significant to promote the progressive development of international law and its codification, and he highlighted the commitment of the Commission to the promotion of the rule of law at the national and international levels.
On “Subsequent agreements and subsequent practice”, he said that it is appropriate that the General Assembly take note of the draft conclusions on this topic in a resolution and that it commend this draft to the attention of all States.
In the same way, with regards to the 16 draft conclusions on the “Identification of customary international law”, he said that the Sixth Committee should ask the General Assembly to commend this draft. He also highlighted that it is important to follow up on the suggestions made as well as the valuable memorandum made by the Secretariat.
Recalling the seventieth anniversary celebration of the Commission, he welcomed the events held in New York and Geneva, adding that he saw the value in holding half of the Commission’s session in New York.
He also welcomed the inclusion of “Universal criminal jurisdiction” and “Sea‑level rise in relation to international law” in the long‑term programme of work and underscored that they should be moved to the present programme of work. With regards to sea‑level rise, the issue is important because of the serious consequences for States with low‑lying coast lines, particularly small island developing States. It is a grave phenomenon that affects a large number of States and requires comprehensive treatment, he said.
ALINA JULIA ARGÜELLO GONZÁLEZ (Nicaragua), associating herself with CELAC, commended the Commission and particularly the Special Rapporteurs for their work on “Identification of customary international law”. The conclusions could serve as a practical guide. Regarding international organizations, she said, the current language could be changed to more appropriately reflect their different roles.
Not all such organizations have the same relevance and this difference in their importance should be reflected within the conclusions and not only in the commentaries, she continued. She pointed to the case of the Organization that “we are in” as an example. Conclusion 8 notes that the relevant practice should be consistent, she noted, expressing disagreement with the definition for that consistency included in the commentaries.
Turning to the inclusion of new topics, she said that the topic of sea‑level rise must be studied from the right angle to reflect the needs of States.
DAPHNE HONG (Singapore) said that it was her country’s privilege to take an active part in the commemorative events of the seventieth anniversary of the Commission. Her Government firmly believes in rules‑based multilateralism and is a strong supporter of the Commission’s work. It is fitting that the Commission’s platinum jubilee brought the completion of the draft conclusions on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” and the draft conclusions of “Identification of customary international law”.
On “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, she said the draft conclusions are a useful practical guide. On draft conclusions 5, 7 and 12, she said her delegation’s observations were available on the United Nations PaperSmart portal. She also signalled her clear support for paragraph 49 of the report.
On “Identification of customary international law,” she said that the draft conclusions are a work of practical importance to all States. Again, on the draft conclusions, her delegation’s specific comments are available on the United Nations PaperSmart portal.
On chapter 13, which deals with other decisions and conclusions of the Commission, she said she was pleased to note that the Commission will commence work on “General principles of international law”, adding that she looked forward to following the Commission’s progress on this front.
PIOTR RYCHLIK (Poland), observing that the Commission’s seventieth anniversary presented an opportunity to reflect on that body’s achievements and challenges, also noted the many contributions it had made on topics, ranging from the law of the sea to international criminal law. As a current non‑permanent member in the Security Council, upholding international law is a priority for Poland, he stressed.
The Commission has proved its worth this year through the adoption of a set of draft conclusions on “Identification of customary international law” and another on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties“, he said, congratulating the respective Special Rapporteurs. The draft conclusions will be especially useful for State organs called on to comply with international law.
Reiterating the suggestions his delegation had made in 2014 regarding new topics for inclusion in the Commission’s programme of work, he said that the Commission should consider subjects that reflect new developments in international law and any pressing concerns. In that regard, the Commission should study the phenomenon of the widespread use of the Internet from the point of view of international law, especially the behaviour of States in cyberspace.
Welcoming the inclusion of “General principles of international law”, he said that such a study would systematize the wide variety of approaches on this topic as pursued by international tribunals and courts.
YUSUKE NAKAYAMA (Japan), commending the successful sessions held in New York and Geneva during the seventieth anniversary of the Commission, stressed that it is important the Commission select practical topics that reflect actual international concerns. Equally important is for States to give adequate guidance on possible topics to be discussed by the Commission. It would be useful to have a session in the Sixth Committee devoted solely to the exploration of new topics, he said, also suggesting that the process of selecting topics should be more transparent.
On the subject of "Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said that articles 31 and 32 of the Vienna Convention set forth various means of interpretation, the process of which consists of “a single combined operation”. At the same time, subsequent agreements and subsequent practice within the meaning of paragraphs 3(a) and (b) of article 31, in particular, are given an important role in the interpretation of treaties because they constitute “objective evidence of the understanding of the parties as to the meaning of the treaty”; that is indicated by the Commission in its 1966 commentary and confirmed in the present draft conclusion 3. Various issues addressed by the current draft conclusions should be understood in light of this fundamental nature of “subsequent agreements” and “subsequent practice”.
Turning to "Identification of customary international law", he commended the Secretariat for its work on elaborating the memorandum on ways and means for making the evidence of customary international law more readily available, although he had observed a certain regional imbalance on materials collected by the Secretariat. He expressed his hope that these valuable materials for the identification of customary international law will be updated in the future.