Concluding Review of Report, Sixth Committee Delegates Urge International Law Commission to Approach Controversial Issues with Care, Political Sensitivity
As delegates concluded consideration of the third and final cluster of topics from the International Law Commission’s annual report, they emphasized the importance of addressing controversial issues, such as immunity of State officials who had committed crimes against humanity and the protection of the environment during armed conflict and occupation, with care and an acknowledgement of the matters’ complexity and political sensitivity. (For background, see Press Release GA/L/3584.)
“Immunity of State officials from foreign criminal jurisdiction”, the representative of South Africa said, carries with it particular political sensitivity as it has a bearing on the very essence of sovereignty. A careful balance between protecting the immunity of representatives of States from the jurisdiction of foreign States and preventing impunity for serious crimes must be sought. The elaboration of procedural aspects can bring an element of objectivity that helps reduce abuse of criminal jurisdiction, even though the possibility of abuse can never be eliminated in its entirety.
Much of the debate concerning that topic centred on the draft article 7 addressing limitations and exceptions to immunity, which was provisionally adopted by the Commission last year.
Ireland’s delegate voiced support for considering the dual components of issues such as timing and waiver, as well as safeguards. Welcoming the Commission’s guidance on which aspects of the draft articles constitute codification of existing international law and which represent progressive development, she called for further elaboration on acts that could attract immunity, the difference between immunity ratione personae and immunity ratione materiae and between general criminal investigations and those for purpose of immunity.
However, Australia’s representative said she was unable to support draft article 7 as it does not reflect any real trend in State practice or international law. She encouraged focus on the classical aspects of immunity as opposed to the continued focus in the report on the proposed exception to the immunity of State officials from foreign criminal jurisdiction in draft article 7. Stressing the need to avoid equating immunity with impunity, she said State officials accused of international crimes may be prosecuted in their own State, before an international court or in the courts of a third‑party State after waiver of immunity.
The Permanent Observer of the Holy See noted that the consideration of immunity by the courts of the forum State at the earliest possible time would afford the State invoking immunity and — by implication, the State official — some of its core benefits. Voicing his support for draft article 7, he noted that immunity should not be confused with impunity. It is essential to define precisely which crimes are to be excluded.
Delegates also tackled the other topics in the third cluster, including “Succession of States in respect of State responsibility” and “Protection of the environment in relation to armed conflicts”.
Croatia’s delegate, commenting on “Succession of States in respect of State responsibility”, drew attention to the International Court of Justice case between his country and Serbia on application of the Convention on the Prevention and Punishment of the Crime of Genocide. Draft article 11 should include both the territorial link and devolution of an organ of the predecessor State into the organ of one of the successor States as key elements when determining the holder of obligations for internationally wrongful acts, he said.
Also speaking on that matter, the Russian Federation’s representative noted that, although the Special Rapporteur decided in the last session to change his approach to the topic, it is still based on the same few examples of the practice of States and court decisions. Those examples are arguable as proof of a certain established rule of succession of States regarding their responsibility, he said, adding that this demonstrates the lack of foundation for the draft articles.
The representative of Viet Nam, addressing “Protection of the environment in relation to armed conflicts”, emphasized that his country knows too well the consequences of armed conflict on the environment and its lasting impact on the population, land and air. The effects of war are still clearly felt in Viet Nam, as they are for other armed conflicts around the world, he stated, expressing support for the work of the Commission towards establishing responsibility regarding the remnants of war.
Nonetheless, the United States delegate said that it is critical that the draft principles and commentary on “Protection of the environment” reflect the fact that international human law is the lex specialis in situations of armed conflict. The extent to which rules contained in other bodies of law might apply during armed conflict must be considered on a case‑by‑case basis, she stressed.
The representative of the Federated States of Micronesia highlighted draft principle 6, and the notion expressed in the commentary that there is a “special relationship between indigenous peoples and their environment”. Armed conflict, especially when waged by foreign powers, typically disrupts that connection, he said, echoing the draft’s call for States to cooperate with indigenous peoples about how best to remedy the harms inflicted by armed conflict.
Addressing the Sixth Committee as it concluded consideration of the International Law Commission’s report, its Chair, Eduardo Valencia-Ospina (Colombia) noted that the original one week allocated to the agenda item has now grown to cover almost two calendar weeks due to the positive and constructive response of delegations. That resulted in a far greater and varied representation of the different regional groups and legal systems, he said, reiterating the request to Governments to submit their comments and observations on various drafts.
Also speaking today were representatives of Singapore, Mexico, Netherlands, Spain, Belarus, Thailand, Lebanon, Switzerland, Romania, Azerbaijan, Colombia, United Kingdom, Israel, Germany, Republic of Korea, Estonia, Turkey, Iran, France, Egypt, Malaysia and Algeria.
Speaking in exercise of the right of reply was the representative of the Philippines.
The Sixth Committee will next meet at 10 a.m. on Thursday, 1 November to begin consideration of protection of persons in the event of disasters, as well as take up resolutions on requests for observer status and the Special Committee on the Charter of the United Nations.
Statements on Cluster III
NATHANIEL KHNG (Singapore), regarding the draft articles on “Immunity of State officials from foreign criminal jurisdiction”, said that he looked forward to a more holistic understanding of the topic. At this time, the issue of exceptions to immunity ratione materiae was one that required further exploration, he noted, stressing that the consideration of provisional safeguards remains highly relevant. Highlighting the need to focus on safeguards to exceptions to immunity ratione materiae, he said that a full discussion of procedural issues is vital to ensure respect for the sovereign equality of States.
PABLO ADRIÁN ARROCHA OLABUENAGA (Mexico), on “Protection of the environment in relation to armed conflicts”, noted that the draft principles aim, on the one hand, to identify the treaty‑based and customary norms and international practices relevant to the protection of environment in armed conflicts. On the other hand, they attempt to clarify the interconnection between different applicable regimes. It is important to clearly define in future reports the concepts of jurisdiction and control. At the moment, jurisprudence and doctrine provide different standards for the international responsibility of States. It is especially important to specify this in the case of territories occupied by non‑State actors backed by third States, he stressed, also proposing an additional section on preventive measures to be taken in times of peace.
Turning to “Succession of States in respect of State responsibility”, he said that in order to avoid repetitive provisions that could engender confusion, the draft articles could be revised to simplify their content and structure. He concurred with the Special Rapporteur’s choice to begin with the general rule concerning the matter and then turn to the criteria for identifying exceptions. He also noted his agreement with the position of some members of the Commission, concerning draft article 6, in which the term “reparation” might limit the scope of the draft to certain aspects of State responsibility. Instead, the report must clarify that all the consequences of committing an internationally wrongful act are transferred in the event of succession.
Regarding “Immunity of State officials from foreign criminal jurisdiction”, he noted that the report contains, in addition to the summary of previous debates on the issue, an extensive study and analysis of the procedural aspects. A thorough review of those aspects is necessary to ensure certainty to the foreign State as well as the State of the official. This is vital to avoid claims of politicization of the prosecution. It would also foster greater confidence between concerned States. Therefore, the proposal that the next report focus on respective procedural aspects is relevant.
JENNIFER NEWSTEAD (United States) said that the celebrations of the Commission’s seventieth anniversary offered an opportunity to reflect on that body’s contributions to the codification of international law. Fewer proposals for draft treaty articles have come forward from the Commission in recent years, and most of the projects in its current programme take the form of draft conclusions and guidelines. While there are benefits to that, the absence of a clear expression of State consent to codification can lead to confusion as to what status should be afforded to the Commission’s work. As reflected in article 15 of the Commission’s Statute, the codification of international law is relevant where there is sufficient State practice, precedent and doctrine. There are several examples within current projects of the Commission that disregard that principle, she said.
Turning to “Identification of Customary International Law”, she emphasized that identifying whether a rule has become customary international law requires a rigorous analysis to determine whether the strict requirements for formation are met. Such State practice must generally be extensive and virtually uniform, including among States particularly involved in the relevant activity. This high threshold required to establish that a particular rule is customary international law is important to all aspects of analysing or otherwise identifying customary international law. In this regard, the statement in draft conclusion 8 that practice must be “sufficiently widespread and representative, as well as consistent” should not be misunderstood as suggesting that a different or lower standard applies.
Commenting on “Subsequent agreements and subsequent practice in the interpretation of treaties”, she said that in general, she agreed with most of the propositions in the draft conclusions. However, there was greater difficulty in evaluating the voluminous commentary that accompanies the draft conclusions; she was unable to assess its general accuracy and reliability. The utility of the draft conclusions and commentaries on any particular issue should be understood to be only as great as the authority and State practice identified in support of the proposition addressed.
On the topic to be included in the Commission’s current programme of work, “General principles of law”, she said while she agreed that the nature, scope and function of this matter could benefit from clarification, she was concerned that there may not be enough material in terms of State practice for the Commission to reach any helpful conclusions.
Regarding the two topics the Commission added to its long‑term programme of work, she said that with respect to “Universal criminal jurisdiction”, she was concerned with the Commission taking up this subject while it is still under active consideration in the Sixth Committee. This topic is not ripe for active consideration, she said.
Turning to “Sea-level rise in relation to international law”, she said that she was concerned that the broad topic, as proposed by the Commission, does not meet two of the Commission’s criteria for selection of a new topic: The topic must “be at a sufficiently advanced stage in terms of State practice to permit progressive development and codification”, and it “should be concrete and feasible for progressive development and codification.” In particular, she questioned whether the issues of Statehood and protection of persons as specifically related to sea level rise are at a sufficiently advanced stage of State practice.
On “Peremptory norms of general international law (jus cogens)”, she said that, in terms of working methods, it is incumbent upon the Commission not only to ensure that States have meaningful and sufficiently frequent opportunities to provide their views to the Commission, but also for the Commission to take those views into account. Unfortunately, the current working method for this project has not been conducive to either pursuit. To the contrary, there appears to have been an intentional departure from standard practice that has delayed referral to the Commission’s plenary of the draft conclusions and delayed the drafting of any draft commentaries. This, in turn, severely limits the ability of States to follow and engage with the Commission’s work. In addition, this working method is especially problematic given that the project is not intended to result in a final outcome that will be negotiated and adopted by States.
Commenting on “Protection of the atmosphere”, she said she has taken note of the draft guidelines that have been adopted at first reading and has found many elements of this topic problematic. Her delegation will study the draft guidelines closely and will submit comments and observations by December 2019 as requested.
With respect to “Provisional application of treaties”, she said her delegation looked forward to reviewing the Draft Guide in detail, with a view to providing written comments by 15 December, 2019. She also noted that the Special Rapporteur intends to continue work on this project in the next session leading to the possible adoption of model clauses. In that regard, she questioned whether States will be provided sufficient time to comment on those clauses prior to a second reading.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, she said that she is generally in accord with the Commission’s approach to immunity ratione personae. Where the Sixth report addresses procedural issues with respect to those enjoying immunity ratione personae, she did not find that the Special Rapporteur’s conclusions raised significant concerns. In contrast, as her delegation had noted last year, the approach that both the fifth and sixth reports have taken with respect to immunity ratione materiae is not reflective of any settled customary international law on the issue.
On “Protection of the environment in relation to armed conflicts”, she said that it is critical that the draft principles and commentary reflect the fact that international human law is the lex specialis in situations of armed conflict. The extent to which rules contained in other bodies of law might apply during armed conflict must be considered on a case‑by‑case basis.
Commenting on “Succession of States in respect of State responsibility”, she said that she is not confident that the topic will enjoy broad acceptance or interest from States in view of the small number of States that have ratified the Vienna Convention on Succession of States in respect of Treaties and the Vienna Convention on Succession of States in respect of State Property, Archives and Debts. The issues raised by the topic are complex, and careful and thoughtful consideration by Governments will be required as the Special Rapporteur continues to develop the draft articles.
LISELOT EGMOND (Netherlands), commenting on “Protection of the environment in relation to armed conflicts”, noted agreement that draft principle 19 — a progressive interpretation of article 43 of The Hague Convention (IV) on War on Land and its Annexed Regulations, 1907 — include the protection of the environment. Concerning paragraph 2 of draft principle 19, she said she agreed that the Special Rapporteur extend her analysis to include human rights. As well, on draft principle 20, a modern‑day interpretation of “usufruct” should include the “sustainable use” of resources. The draft principles on occupation should not take into account the international administration of a territory, she said, adding that issues relating to non‑international armed conflicts should also be considered.
Concerning “Immunity of State officials from foreign jurisdiction”, she said that discussions among the members of the Commission and States in the Sixth Committee have demonstrated that there is no consensus yet on the exceptions and limitations of immunity of State officials and she expressed hope that it will soon be reached in draft article 7. Regarding the question of exceptions and limitations, a reference to “crimes under international law” would avoid unnecessary debates on the topic. The issue before the Commission is limited to the exercise of criminal jurisdiction. A national court should not be obliged to blindly accept a claim of immunity by a foreign State official. Emphasizing the distinction between immunity and inviolability, she said that persons enjoying immunity ratione materiae do not enjoy inviolability. Requests to produce documents, at least with respect to State‑owned property, may be subject to special rules on the topic, such as the mention of such property in the United Nations Convention on the Immunity of States and their property of 2004.
MLADEN BRUČIĆ-MATIC (Croatia), speaking on “Succession of States in respect of State responsibility”, said that both the territorial link and devolution of an organ of the predecessor State into the organ of one of the successor States should be considered as key elements when determining the holder of obligations for internationally wrongful acts; it should be included in draft article 11. The second factor seems to be recognized by the International Court of Justice as part of its jurisdiction construct in the case between Croatia and Serbia on application of the Convention on the Prevention and Punishment of the Crime of Genocide. One should also consider a situation in which part or parts of the predecessor State that becomes a successor State could bear responsibility for internationally wrongful acts, not only towards third States but other successor States of the once common State.
Turning to “Peremptory norms of general international law” (jus cogens)”, he called attention to draft conclusion 10.1 and draft conclusion 11.1, stating that both address the same issue in a like manner and should be merged.
Commenting on “Universal criminal jurisdiction”, he emphasized the need for proper implementation of this concept, cautioning against its misuse. He particularly stressed that universal jurisdiction is a jurisdictional basis of last resort, which should be executed only when the primary competent State — on the basis of the principle of territoriality, active nationality or passive nationality — is unable or unwilling to act. He also warned against serious misinterpretations of universal jurisdiction through changes in its spatial and temporal framework, leading to flagrant infringements of other States’ sovereignty.
CARLOS JIMÉNEZ PIERNAS (Spain), speaking on “Immunity of State officials from foreign criminal jurisdiction”, said a system of limitations and exceptions to immunity ratione materiae needs to be set up, as reflected by draft article 7. Foreign State officials whose mandate has ended should not be entitled to invoke immunity ratione materiae in cases of the most serious crimes of international law, namely genocide, crimes against humanity, war crimes, apartheid, torture and enforced disappearance. The Commission should approve a draft that includes a provision with the scope mentioned in article 7, along with the aim of achieving the fight against impunity. On procedural aspects, immunity of jurisdiction should be given due regard without delay at the very beginning of criminal proceedings against a foreign official. Doing so would not preclude judicial bodies from carrying out investigations or the collection of evidence. When dealing with procedural issues, the use of existing judicial cooperation mechanisms and mutual legal assistance should be explored, as they can help strike a proper balance between respect for the principle of sovereignty and the fight against impunity.
ANNE-MARIE O’SULLIVAN (Ireland), commenting on “Immunity of State officials from foreign criminal jurisdiction”, said she looked forward to a more complete analysis of procedural aspects of immunity, adding that she supported consideration of the dual components of issues such as timing and waiver, as well as safeguards, particularly in the context of article 7. Safeguards protecting due process and other guarantees under international human rights law, as well as those aimed at protecting the stability of international relations and avoiding political and abusive prosecutions should be subject to analysis.
In addition, she welcomed guidance from the Commission on those aspects of the draft articles that constitute codification of existing international law and those that represent progressive development. Affirming that procedural provisions and safeguards are relevant to the draft articles as a whole, she also welcomed guidance on the question of timing, as well as a more detailed consideration of immunity in relation to limine litis. Further elaboration of material areas could also be beneficial, including on acts that could attract immunity, the difference between immunity ratione personae and immunity ratione materiae and between general criminal investigations and those for purpose of immunity. She highlighted the need to ensure the allocation of adequate time for full consideration of this important and complex topic.
ILYA ADAMOV (Belarus), speaking on “Protection of the environment in relation to armed conflicts”, said that, as a general observation, there is a need to eradicate any internal disagreements in the document regarding existing international regulations, the use of terminology and the coherence of approaches with regard to international humanitarian law. It is counter‑productive to have studies on international environmental law on this topic. The principles should not look at non‑international armed conflict because environmental legislation of a State is still in force even when there is a conflict. He proposed limiting the area of activity under consideration to international armed conflict.
Regarding “Succession of States in respect of State responsibility”, he said the topic has limited State practice and is dependent on historical context. Caution should be exercised in formulating a presumption in succession when the predecessor State has ceased to exist, he said.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said that, as several delegates have already pointed out, this immunity is a rule of customary international law and stems from the sovereign equality of States. There has been a lack of rule of customary international law stipulating exception of immunity for State officials, he said, underscoring that the values in and of themselves do not have an impact on existing international law.
PIRANAJ THONGNOPNUA YVARD (Thailand), speaking on “Immunity of State officials from foreign criminal jurisdiction”, said that the issue of limitations and exceptions to immunity is a highly sensitive matter. Hence, there is a need for a balance of all possible aspects concerning both the forum State and the State of the foreign official. Concerning the provisionally adopted draft article 7 that lists out crimes under international law to which immunity ratione materiae should not apply, she expressed support to the conclusion that a clear distinction between immunity ratione materiae and immunity ratione personae needs to be made at the time of the consideration of whether immunity would apply. She also added that limitations and exceptions to immunity apply only to immunity ratione materiae and that the work on this topic should be based on lex lata, State practice, and customary international law. Further discussion and deliberation on the procedural aspects would help ensure a fair and effective operation of draft article 7. She said she looked forward to the next report of the Special Rapporteur which will focus on the procedural aspects of immunity of State officials from foreign criminal jurisdiction.
AMAL MUDALLALI (Lebanon), on “Protection of the environment in relation to armed conflicts”, stressed the importance of bringing more legal clarity to the topic. Noting that draft principles 19.2 and 20 both use the terminology “population of the occupied territory”, she suggested using “protected population of the occupied territory” or “protected persons of the occupied territory”. This draws attention to the definition of “protected persons” as found in article 4 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War — also known as the Fourth Geneva Convention — which states: “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals”. Further, the question of responsibility and liability for environmental harm could consider the questions of reparation and especially restitution, when possible, in cases of internationally wrongful acts committed against the environment, she said.
VINCENT OLIVIER RITTENER (Switzerland), speaking on “Protection of the environment in relation to armed conflicts”, said that international humanitarian law provides the primary basis which must be adequately reflected in the elaboration of new specific regimes. The protection of the environment during armed conflicts should be made more explicit and developed in a way to fill the gaps relating to environmental protection without changing existing international humanitarian law. Regarding the principles governing post‑conflict situations and particularly the principle relating to remnants of war, there could be merit in this if not only the different rights and obligations of the former parties to the conflict, but also those of other relevant actors would be further clarified.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he reiterated the significance of the procedural aspects of immunity from foreign criminal jurisdiction. Several methodological questions, such as the necessity to rule expressly on whether immunity exists, the invocation and waiver of immunity and the timing, require further clarification. The respect of immunities of State officials, if and when it is applicable, are key in avoiding an unnecessary strain on international relations and maintaining the sovereign equality of States. It would be useful for the Commission to comment on these issues.
LAURA STRESINA (Romania) addressed “Succession of States in respect of State responsibility”, noting that Commission discussions tried to streamline analysis on the topic with limited progress. The paucity and diversity of State practice is not conducive to the codification or progressive development on the matter. The topic would be relevant if it resulted in a set of model clauses for use by States in agreements on succession.
Turning to “Protection of the environment in relation to armed conflicts”, she said international humanitarian law is lex specialis on the matter. Recalling the International Court of Justice Advisory Option on the Legality of the Threat or Use of Nuclear Weapons from 1996, she noted that international humanitarian law does not operate to the exclusion of all other rules and principles during armed conflict. Citing the relevance of the precautionary “polluter pays” principles as applicable to armed conflict situations, she said the relevance increases based on the potential transboundary impact of activities harming the environment. Other affected States, as well as the occupied State, share an interest in clarifying responsibilities in that regard.
On “Immunity of State officials from foreign criminal jurisdiction”, she observed that clarifying the procedural implications of immunity and establishing procedural safeguards for the official’s State could help alleviate concerns around politicization and abuse in exercise of jurisdiction. The application of this legal regime must also consider the development of substantive norms of international criminal law and international human rights, particularly ongoing efforts to prevent immunity for serious crimes under international law. Such rules should not be regarded as conflicting with the norms of jus cogens nor should they remove the responsibility for such violations or affect the objective to combat impunity for the gravest crimes. It is up to the courts of the forum State to determine the existence of immunity, she said, also highlighting the roles of the executive, the ministries of foreign affairs and law enforcement agencies.
TOFIG MUSAYEV (Azerbaijan), commenting on “Protection of the environment in relation to armed conflicts”, said it was a matter of debate whether — and to what extent — international environmental law applies and provides protection during armed conflict. He expressed support for the consideration of the interplay between the law of armed conflicts and other branches of international law, in particular international human rights law and international environmental law. Situations of occupation vary in nature and duration. Therefore, while addressing the protection of the environment and property rights in an occupied territory, the distinct characteristic of the occupation should be taken into consideration, particularly when such occupation is a result of the unlawful use of force. The occupying State must not exercise its authority and exploit the resources or other assets of the occupied territory. He also noted his disagreement with the view that the notion of “safeguarding the capital” can be equated with “sustainable use of natural resources”. Such a view may be misinterpreted by the occupiers as a pretext to secure or enhance territorial claims and thus prolong occupation, he said, stressing that draft principle 20 requires additional clarification to avoid such abuse.
Commending the efforts of the Commission to clarify the topic “Immunity of State officials from foreign criminal jurisdiction”, he noted that Member States and the Commission itself are divided about limitation and exceptions. More should be done at the international level to ensure that those responsible for serious crimes, including State officials, are brought to justice. Nevertheless, raising concerns about the appropriateness of the work of the Commission on the topic, he said that might open an opportunity for misinterpretation and politically motivated actions. Draft article 7, and some of the crimes listed therein, lacks sufficient support in State practice and does not reflect customary international law, he said.
MAXIM V. MUSIKHIN (Russian Federation), speaking on “Protection of the environment in relation to armed conflicts”, said that this issue overall has been sufficiently settled by the international humanitarian law and does not require elaboration of a new international convention. “We deem as counterproductive the attempts to develop a code of comprehensive rules of environment protection at all stages — preparation to an armed conflict, during and after the armed conflict,” he said. The draft contains language of a general nature, for example concerning “areas of major environmental and cultural importance” and “protected zones”. Questioning the establishment of such areas in the absence of war, he reminded the Committee that international humanitarian law regards as protected areas demilitarized zones, hospitals and security zones as well as unprotected towns and settlements.
Turning to “Succession of States in respect of State responsibility”, he said the Commission was not able to move forward significantly on this topic. Draft articles 5 and 6 are simply auxiliary. Although the Special Rapporteur decided in the last session to change his approach to the topic, it is still based on the same few examples of the practice of States and court decisions. Those examples are arguable as proof of a certain established rule of succession of States regarding their responsibility. It is complicated to form a conclusion on the existence of a certain general norm on their basis. This demonstrates the lack of foundation for the draft articles.
Expressing concern that the procedural aspects of “Immunity of State officials from foreign criminal jurisdiction” were not examined in a broad and comprehensive manner, he noted that this is an area on which the Commission could formulate valuable guidelines based on existing case law and practice. The formulation of procedural rules for application of immunity could remove some concerns of States on the issue of rules inconsistent with the international practice. Unfortunately, the report did not contain an analysis of the interrelationship between the procedural and material legal aspects of the topic. The desire to eradicate impunity for serious international crimes is a noble goal but it should not serve as an instrument for manipulation of the norms of customary international law, he stressed.
JUAN CUELLAR TORRES (Colombia), associating himself with the Community of Latin American and Caribbean States (CELAC), said that, on “Protection of the environment in relation to armed conflicts”, environmental effects of war can pose serious threats to human beings and the ecosystems. Often these consequences are long‑term and sometimes irreparable, stymying effective reconstruction and resulting in erasure of large areas of wilderness. Recalling the 1992 Rio Declaration on Development and Environment, he highlighted principle 24 which stressed that warfare is inherently destructive of sustainable development. He also spotlighted the importance of integrating international humanitarian law with other branches of law, such as environmental law, human rights law, and treaty law, as well as the Law of the Sea. As stated by the Commission, environmental concerns have permeated most areas of international law. The peace agreement that his Government concluded with the Revolutionary Armed Forces of Colombia‑People's Army (FARC) promotes the recognition of the human and social impact of conflict on societies, including on environmental rights.
JEEM LIPPWE (Federated States of Micronesia), speaking on “Protection of the environment in relation to armed conflicts”, said that with respect to draft principle 6, he strongly supported the notion expressed in the commentary which states there is a “special relationship between indigenous peoples and their environment”. Such a relationship is rooted in centuries of close interactions between indigenous peoples and the natural environments they inhabit. Terrestrial and maritime areas and resources are typically of great importance for indigenous peoples, being closely linked to their cultural practices, sociopolitical rankings, traditional identities and basic sustenance in a unique manner. International law is replete with recognition of the rights of indigenous peoples in various forms, including the right to enjoy their natural environments for long‑standing purposes that are unique to those peoples. Armed conflict, especially when waged by foreign powers, typically disrupts the connections between indigenous peoples and their natural environments in profound ways and threatening their identities. He echoed the call in draft principle 6 for States to undertaken effective consultations and cooperation with indigenous peoples about how best to remedy the harms inflicted by armed conflict on the territories they inhabit.
SANDEA DE WET (South Africa), aligning herself with the African Group, turned to “Protection of the environment in relation to armed conflicts” and voiced her appreciation for the Commission’s work clarifying the rules and principles of the law of armed conflict that relate to the protection of the environment. The ultimate aim of works on this topic — the protection of the environment and the rights of people living under occupation — should not be undertaken exclusively in terms of the law of armed conflict or the law of occupation. Rather, the interface between the law of armed occupation, on the one hand, and international human rights law and international environmental law on the other, should be examined to reflect the full gamut of legal norms that afford protection to the environment during occupation.
Regarding “Immunity of State officials from foreign criminal jurisdiction”, she said that the question of immunities is a heavily debated topic and has become even more so in recent years. It carries with it particular political sensitivity as it has a bearing on the very essence of sovereignty. A careful balance must be struck between the protection of the well‑established norm of immunity of representatives of States from the jurisdiction of foreign States and the avoidance of impunity for serious crimes. In this regard, the elaboration of procedural aspects is a positive development. It brings an element of objectivity that seeks to reduce politicization and abuse of criminal jurisdiction, even though the possibility of abuse can never be eliminated in its entirety.
ELAINE GORASIA (United Kingdom) noted that on “Protection of the environment in relation to armed conflicts”, the report proposed three new draft principles regarding situations of occupation. She also noted the very wide scope of that report, which covered the whole conflict cycle and allowed review of the law of armed conflict, international human rights law and international environmental law. She said that she remains unconvinced that there is a need for new treaty provisions in this area. The Commission should not seek to modify the law of armed conflict or the law of occupation. She also said that the topic should not broaden in scope to examine how other legal fields interrelate.
On “Succession of States in respect of State responsibility”, she said that there is little by way of State practice in this area to guide the Commission, highlighting the challenges presented when working on the matter. While noting the additional practice in the second report, she said she remains concerned that such practice is context‑specific and sensitive and must be viewed in its historical, political and even cultural context.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, she said that this topic is of great practical significance. It also increasingly attracts comment and scrutiny from a variety of perspectives. While a clear and well‑documented proposal by the Commission would be very valuable, there is a long way to go before achieving that goal. The preliminary report this year reiterates the need to address the procedural aspects of immunity, including the timing of consideration of immunity and which organ should determine its applicability and its effect on jurisdiction. It also addresses a number of general procedural matters, including the need for safeguards to protect the sovereign equality of States by preventing the politicization or abuse of criminal jurisdiction. However, it is clear that there remains a divergence of opinion on how procedural aspects should be addressed and their relationship to the proposed exceptions to immunity.
REUVEN EIDELMAN (Israel), on “Protection of the environment related to armed conflict”, said some of the draft principles reflect progressive development of international law and should not be read as representing the current state of the law. While the law of armed conflict is not designed to protect the environment per se, it does require such protection to some extent by limiting environmental harm and prejudices the health and well‑being of the civilian population. Draft principle 20 should reflect existing international law, particularly regulations annexed to the Fourth Hague Convention. Pointing out that article 55 of those regulations addresses the use of natural resources by an occupying power, he said it instructs the latter to safeguard the capital of properties and administer them in accordance with the rules of usufruct. Draft principle 20 seems to impose additional requirements and elements that go beyond the current state of law, he noted, calling for more proper alignment in that regard.
Regarding “Succession of States in respect of State responsibility”, he said available State practice in that field remains “limited, diverse, context‑specific and often politically sensitive”. It presents significant challenges for the Commission’s work, raising concerns as to the suitability of its codification. Stressing that the Commission should focus on the codification of international law as reflected in State practice, he cautioned against relying on academic writings and the work of the Institute of International Law. That project remains in its infancy and it is too early to determine its final form. However, the Commission’s work in that area should be discretionary in nature as well as subsidiary in character to agreements between States, including the injured States of an internationally wrongful act.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he expressed concern that the draft articles adopted provisionally thus far have failed to accurately reflect customary international law. Echoing concerns raised by other speakers about the unsatisfactory treatment of the issue of immunity ratione personae and the exceptions of immunity in that regard — as addressed in draft article 7 — he welcomed the Special Rapporteur’s suggestions regarding the need to respect the sovereign equality of States and protect the proper functioning of international relations. He also expressed support for the request to discuss the definition of the term “jurisdiction” as well as to consider whether the exercise of jurisdiction over States officials should be subjected to a decision by a higher domestic court rather than a lower one. Furthermore, it is important to devise a communication mechanism between the forum State and the State official’s home State which will recognize the principle of subsidiarity or complementarity.
KERSTIN PÜRSCHEL (Germany), speaking on “Immunity of State officials from foreign criminal jurisdiction”, observed that the topic is among the most controversial subjects the Commission has ever dealt with. Highlighting the intensity of the debate on limitation and exceptions to immunity and the related draft article 7, she said the discussions had shown the importance of considering procedural aspects together with draft article 7. Procedural safeguards against the misuse of exceptions to immunity are a vital matter in themselves but have become even more important with a view to draft article 7. It is regrettable that this year’s report only initiated the debate on this issue while referring several important issues to next year’s report. Any substantial change of international law in this area proposed by the Commission would have to be agreed upon by States by treaty, she stressed.
YOUNGHYO PARK (Republic of Korea), speaking on “Protection of the environment in relation to armed conflicts”, said he supported the position of the Special Rapporteur of not attempting to set forth a new methodology but seeking to ensure coherence with the work completed so far. He welcomed the discussion of the situation of occupation, which is related to both the armed conflict stage and the post‑conflict stage. It does not exclusively fall within either and depending on the phase it needs to be discussed separately. Paragraph 2 of draft principle 4, formulated in a less prescriptive way to encourage voluntary measures, is suitable for a topic that would end up as “principles”. In addition, he welcomed that draft principle 6 emphasizes the rights of indigenous people, which should be respected when taking remedial measures after an armed conflict.
On “Succession of States in respect of State responsibility”, he underscored that available State practice on the topic requires context‑specific approaches and often involves political sensitivity. However, the work of the Commission can help fill the legal gap between State responsibility and State succession while enhancing predictability for resolving relevant problems. He welcomed the adoption of draft article 1(2), which stressed the subsidiary nature of the draft articles. An agreement between the parties should be a priority when dealing with State succession in respect of State responsibility. The work of the Commission will provide a standard for resolving problems as well as for forming agreements, but these provisions should only be applied in the absence of an agreement between parties, he said.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said that it is noted that the Special Rapporteur did not propose new draft articles and the Commission’s plenary discussion on the sixth report has not been completely finalized and will continue next year. Therefore, his delegation will provide comments after the completion of that discussion.
CARY SCOTT‑KEMMIS (Australia), focusing on “Immunity of State officials from foreign criminal jurisdiction”, said the classical aspects of that immunity relating to timing, invocation and waiver should be the primary focus of the Special Rapporteur’s seventh report. Draft articles on that topic should codify customary international law and therefore be distilled from relevant State practice and opinio juris, he said, emphasizing the procedural nature of the immunity of State officials. Underscoring the need to avoid equating immunity with impunity, he said State officials accused of international crimes may be prosecuted in their own State, before an international court with jurisdiction or in the courts of a third‑party State after waiver of immunity.
Expressing regret over the continued focus in the report on the proposed exception to the immunity of State officials from foreign criminal jurisdiction in draft article 7, he recalled that the Commission had been unable to resolve that issue by consensus at its sixty‑ninth session and draft article 7 was provisionally adopted by a vote. Australia remains unable to support that draft article as it continues to have concerns that, in its current form, the article does not reflect any real trend in State practice, still less existing international law. In addition, he raised concerns that a focus on draft article 7 may risk distracting the Commission from its other work. If adopted in the future, it should be clearly identified as progressive development in the law, he stressed.
ANNELI LEEGA PIISKOP (Estonia), speaking on “Succession of States in respect of State responsibility”, said that draft article 5 correctly points out that succession applies only to the effect that the succession of a State took place in conformity with international law. That is important for clarity and limitation of scope of the draft articles on that topic. Stressing that the illegal acquisition of territory cannot generate the effect of succession, she highlighted paragraph 85 of the report which notes that Estonia, Latvia and Lithuania which restored their independence cannot be regarded as new States but as identical to the three States that existed before 1940. She also voiced support for other delegations’ comments that it will be helpful to know which aspects of the draft articles contain existing State practice and which contain de lege ferenda.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, she said that the crime of aggression should also be listed in draft article 7 as a crime against which immunity rationae materiae did not apply. The Commission must return to this issue, she said, adding that the Estonian Penal Court contains a specific article on crimes of aggression, in accordance with the amended Rome Statute. Immunity should not be defined in such a way that perpetrators of grave crimes cannot be held accountable, she said, noting the close relationship between limitations and exceptions to immunity and efficient procedural safeguards.
DIGDEM BUNER (Turkey), informing the Committee that her full statement is on the United Nations PaperSmart portal, then turned to “Succession of States in respect of State responsibility”. She addressed the specific new approach proposed in the Special Rapporteur’s second report — namely, the suggestion of using “continuing State” and “successor State” as distinctive criterion in determining exception to the non‑succession and responsibility for wrongful acts. Underscoring that the continuity and succession of massive political and legal consequences are not definitely extricated from each other yet in legal terms and are largely entwined, she said the cases having emerged thus far lack commonalities and thus cannot be conceptualized. “Those terms themselves are not clear-cut enough [and are] doubtful in their legal or political characteristic, as well,” she said, adding that they are currently at the level of theoretical debate rather than political theses.
NGUYEN NAM DUONG (Viet Nam), speaking on “Protection of the environment in relation to armed conflicts”, said that his country knows too well the consequences of armed conflict on the environment. It has a lasting impact on the population, land and air. The effects of war are still clearly felt in Viet Nam. The same is true for other armed conflicts around the world, he emphasized, adding that his delegation is very supportive of the work of the Commission to establish responsibility regarding the remnants of war. He also voiced his support for the work of the Special Rapporteur to integrate occupation in the project. Even though he supported the use of “occupying power” instead of “State”, he would like to see further elaboration on different types of occupation, he said.
Turning to “Succession of States in respect of State responsibility”, he highlighted paragraphs 154 and 155 in the Special Rapporteur’s second report, of which he had reservations. Based on his interpretation of the 1995 Agreement between the Government of the United States of America and the Government of the Socialist Republic of Vietnam Concerning the Settlement of Certain Property Claims, the interpretation in the Special Rapporteur’s report was incorrect and did not reflect the common understanding of both parties.
Commenting on “Immunity of State officials from foreign criminal jurisdiction”, he said that the topic originates from customary international law. Thus, the rules in this matter need to be looked at carefully with regard to sovereign equality. The drafting of the articles needs to reflect the codification of established norms.
Regarding the long‑term programme of work and the consideration of two additional topics, he said that at this point the Commission should exercise caution in considering the topic, “Universal crime jurisdiction”. In addition, the Commission is currently occupied with other topics, including “Immunity of State officials from foreign criminal jurisdiction” and “Peremptory norms of general international law (jus cogens)”. On “Sea-level rise in relation to international law”, he said that the topic will touch upon one of the greatest challenges of the time. Accordingly, he voiced his support for the study group, as well as including the topic in the work of the Commission at its coming sessions.
SATTAR AHMADI (Iran) said that on “Protection of the environment in relation to armed conflicts” he was confident that the present draft principles and commentaries thereto would be merely limited to international armed conflicts and not be applied to non‑international armed conflicts; they are different in nature and the application of related rules in the non‑international domain would be different. It is also important to define the occupation. In considering the definition of occupation in relation to armed conflict, it is not quite clear whether the reference made to occupation would be compatible with article 42 of the regulations of the Fourth Geneva Convention or applicable regulations of the Geneva Conventions of 1949. This needs to be addressed and clarified, he said.
On “Succession of States in respect of State responsibility”, he said that having considered the content of the second report, he was not yet convinced that the draft articles on the topic are a good choice for the time being. It should also be borne in mind that the previous works of the Commission on the related topic, including the Vienna Convention on Succession of States in respect of Treaties and the Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, have not yet received widespread endorsement by States. The States concerned have preferred to settle their disputes through bilateral agreements. He also noted he was not in agreement with the suggestion by some members of the Commission that draft guidelines would be more appropriate. Moreover, the issue of succession of States in respect of State responsibility is not supported sufficiently by State practice.
Commenting on “Immunity of State officials from foreign criminal jurisdiction”, he said that the report seems to address some procedural aspects of the topic, adding that he welcomed the fact that the Special Rapporteur will address procedural issues in her seventh report in 2019. The discussion of procedural issues is essential to ensure that immunities, where applicable, are respected in order to safeguard the stability of international relations and ensure respect for the sovereign equality of States. It is equally vital to take into account the rights of the State official concerned, he said.
SHERAZ GASRI (France), speaking on “Protection of the environment in relation to armed conflicts”, said some developments seem to focus on matters that go beyond the protection of the environment in relation to armed conflict, particularly the application of international humanitarian law in situations of occupation. It would be appropriate to clarify the status of the Commission’s work on the subject, he said, recalling that the Special Rapporteur had noted that the draft principles should try to fill the gaps about the protection of the environment.
On “Succession of States in respect of State responsibility”, he thanked the Special Rapporteur for the second report and noted the linguistic diversity of the sources referenced. This is necessary because State practice seems limited and the circumstances of each situation have substantial influence on the matter. As well, these may also be politically sensitive matters. Given the rarity of occurrences, the Commission might clarify whether the provisions are part of codification of existing law or whether it is a question of progressive development, he said.
MOHAMED IBRAHIM ABDELKHALEK ELSHENAWY (Egypt), commenting on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, noted his reservations regarding the definition of subsequent practice as a supplementary means of interpretation. The Special Rapporteur’s report states that its definition of subsequent practice is, per se, that of article 32 of the Vienna Convention. However, article 32 does not include any reference to subsequent practice or the definition of it. Therefore, the definition is not based on the Vienna Convention or an established legal rule. Moreover, the definition of subsequent practice as the conduct by one or more parties in application of the treaty gives the right to one State to develop a new interpretation for the Convention based on its own conduct. It would be better to amend this definition and align it with article 31 of the Vienna Convention.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he questioned whether courts of foreign States are competent to give a definitive view of the applicability of immunity. He voiced reservations about the content of article 278, paragraph(b) on the right of a foreign State to exercise jurisdiction, based on the fact that the concept of immunity overrides the jurisdiction of foreign States. Also questioning the focus of some paragraphs on the role of foreign States courts in enforcing immunity, he said this allows these courts to lift the immunity of foreign officials, neglecting the sovereign rights of States. He further expressed disagreement with draft article 7, underscoring that it is not based on existing international law or custom and does not reflect any real trend in State practice or international case law.
AFZAN ABD KAHAR (Malaysia), commenting on “Protection of the environment in relation to armed conflicts”, pointed to a discrepancy in the terms “environment” and “natural environment” used in the draft principles. It is important to identify distinguishable criteria to avoid confusion when using either term. Also noting the special relationship between indigenous communities and their natural living environment, she said these people have a significant role to play in post‑conflict remediation efforts. Paragraph 3 should reflect greater latitude for the occupying power to improve environmental laws of the occupied territory and the need to involve local communities, who remain the custodians and primary stakeholders of an environmental regulation. She also stressed that permanent sovereignty of people over their natural resources should be the foundation for draft principle 20, adding that any use of these assets by the occupying power must be sustainable and beneficial to subjects and occupied territories.
Turning to “Succession of States in respect of State responsibility”, she drew attention to draft article 6 and its ambiguous language; it does not say clearly that only the State that has committed an internationally wrongful act in the case of succession of State should be held responsible for such a wrongful act. Further, the term “secession” in the title of draft article 7 should not be used, as this term may be interpreted to include unlawful succession and could be contrary to draft article 5, which aims to limit the present draft articles to succession of State in conformity with international law. She also noted that the Special Rapporteur’s second report puts more emphasis on State practice in European countries than other regions when deliberating the issue of transfer of part of the territory of a State, making the analysis on draft article 9 seem disproportionate.
As for “Immunity of State officials from foreign criminal jurisdiction”, she said these issues should be addressed at the earliest stage possible to prevent nullifying the essence of the immunity rule. The Government of the forum State should have the authority to decide whether immunity exists and whether there are exceptions to it. If the determination whether immunity exists is made only when the matter is brought to court, it might already be too late. The criminal jurisdiction of the Government of the forum State might have been exercised on the State official, thus nullifying the essence of the immunity rule. In the event that consideration of immunity is done by the Government of the forum State, further procedural safeguards may be needed to prevent abuse of power or political prosecution.
ZAKIA IGHIL (Algeria), speaking on “Protection of the environment in relation to armed conflicts”, commended the Special Rapporteur for her excellent work. The Commission provisionally adopted a number of draft principles and the Special Rapporteur focused in her first report on the issue of the protection of the environment in situations of occupation. She voiced her support of the inclusion of the three draft principles in a separate part four, which deals with the environment in situations of occupation.
On “Immunity of State officials from foreign criminal jurisdiction”, she said that this topic should be treated with great caution because of political sensitivities. As well, there were deep controversies that remained within the Commission itself, she observed.
BERNARDITO CLEOPAS AUZA, Permanent Observer of the Holy See, speaking on “Immunity of State officials from foreign criminal jurisdiction”, noted immunity must be considered by the courts of the forum State at the earliest possible time. This would afford the State invoking immunity and — by implication, the State official — some of its core benefits. He noted that any measures aimed at imposing obligations on a foreign official that, in event of non‑compliance, could lead to coercive measures, may raise questions of immunity. In the cases of foreign courts attempting to summon public officials under subpoena to give testimony, the Holy See invokes the immunity rationae materiae of the public official concerned. He also said he supported the inclusion of draft article 7 regarding crimes in which immunity rationae materiae does not apply. Noting that immunity should not be confused with impunity, he stressed that, at the same time, it is essential to define precisely which crimes are to be excluded.
Right of Reply
The representative of the Philippines, speaking in exercise of the right of reply, referred to a delegation’s reference to the South China Sea arbitration. She read a note from the Foreign Secretary of the Philippines, which says that this is an old and settled decision rendered by a Court whose jurisdiction the Philippines and China recognize, both being signatories to the United Nations Convention on the Law of the Sea. The decision does not favour the Philippines as much as describe certain maritime features, she said. The decision is international law, and it may be that the Philippines will never be able to enforce the decision, but it will not move an inch. Achieving consensus to move on around the differences will bring about an enhancement of the law and a mutually beneficial relationship between the two countries.
Closing Remarks
EDUARDO VALENCIA-OSPINA (Colombia), Chair of the International Law Commission, said that the yearly consideration of the Commission’s report by the Sixth Committee has been attracting increasing participation by the chief legal advisors of foreign offices and other ministries from the capitals of Member States. That attested to the importance that States attach to the work of the Commission. Noting how the original one week allocated to the agenda item has now grown to cover almost two calendar weeks, he called it a welcome development. It represents the positive and constructive response by the Sixth Committee to the call, repeatedly made by the Commission, for a far greater and varied representation of the different regional groups and legal systems in the debate.
While it would not be possible to summarize the rich discussion held on eight substantive topics, he noted that a “rather succinct overview of the discussion is helpfully prepared daily by the Department of Public Information (DPI) and published in the Meetings Coverage Press Release”. Also noting the fuller topical summary drafted in due course by the Commission‘s Secretariat, as well as the integral verbatim text distributed via the United Nations Meeting PaperSmart portal, he noted that Special Rapporteurs can thus have immediate access to the considered views expressed in the Committee.
Reiterating the request to Governments to submit their comments and observations on the draft articles on “Crimes against humanity”, as well as comments and observations on the draft guidelines on “Protection of the atmosphere” and the draft guidelines on the “Provisional application of treaties”, he said that in fulfilling his mandate as the Chair of the Commission, he had consistently endeavoured to keep in mind the complementary but separate roles of the Commission and the Sixth Committee. Expressing gratitude to all the delegations, he also acknowledged the important contribution of the Codification Division.