Continuing International Law Commission Review, Sixth Committee Delegates Argue about Including Jus Cogens Settlement Dispute Mechanisms, Non-Exhaustive List
Continuing its debate today on Cluster I from the report of the International Law Commission, Sixth Committee (Legal) delegates dissented on the Commission’s inclusion of dispute-settlement mechanisms and a non-exhaustive list in its draft conclusions on “Peremptory norms of general international law (jus cogens)”. (For background, see Press Releases GA/L/3605 and GA/L/3606.)
The representative of Germany, referencing draft conclusion 21, highlighted the potential far-reaching consequences of invoking a conflict with jus cogens norms; such consequences could not follow automatically from the mere claim that such a conflict exists. He therefore commended the Commission’s inclusion of a procedure for such invocation as a step in the right direction, able to absorb the potential wide-ranging effects of such situations of conflict.
Opposing that stance, the Russian Federation’s delegate said that it was problematic for the Commission to include mechanisms for dispute settlements. There is no confirmation in contemporary international law for conclusion 21 setting forth dispute-settlement procedures for norms of international law as a whole. Further, the inclusion of a list of peremptory norms was inappropriate and likely to be used not to identify new peremptory norms but to prove the presence or absence of such a norm based on those included in the list.
Switzerland’s representative also took issue with the illustrative list, but for a different reason. Calling it too restrictive, she encouraged the Commission to analyse State practice to broaden the list’s scope. For its part, her country has considerable experience with jus cogens and considers the equality of States, individual criminal responsibility and the prohibitions of piracy, collective punishment and unequal treatment to be constitutive elements of jus cogens.
However, Mexico’s delegate thanked the Special Rapporteur for including an illustrative list of these norms, stating that the list is useful for further analysis of the issue of peremptory norms of general international law. The norms, by definition, cannot be derogated from, and not even the Charter of the United Nations is exempt from their application. The international community can reflect on State practice in this area, with regards to their obligations under the Charter on the one hand and jus cogens norms on the other.
Also speaking today were representatives of Cuba, El Salvador, Slovenia, Croatia and Portugal.
The Sixth Committee will next meet at 10 a.m. on Thursday, 31 October, to continue its consideration of topics in the first cluster of the report of the International Law Commission.
Statements on Cluster I
CHRISTOPHER EICK (Germany), commenting on “Crimes against humanity”, noted how the Commission took on board the suggestions of States. “In many respects, this has been the ILC [International Law Commission] at its best,” he emphasized. While the concept of crimes against humanity and its definition are well accepted, there is, with the notable exception of the International Criminal Court Statute, no international convention on this core crime. All States, including those that have expressed reservations regarding the Court, must have at their disposal a legal instrument that aims at preventing and punishing at the national level crimes against humanity. The draft articles do not contain unusual or burdensome obligations, he pointed out, expressing support for the elaboration of a convention based on the draft articles.
On “Peremptory norms of general international law (jus cogens)”, he underlined that the legal effects and consequences arising from such norms are of great importance. However, while noting the “without prejudice” clause in draft conclusion 23, he also said that he was not convinced of the necessity and usefulness of the list of norms in the annex. Further, the consequences of invoking a conflict with jus cogens norms are far-reaching and could not follow automatically from the mere claim that such a conflict exists. Therefore, welcoming the inclusion of a procedure for invocation in draft conclusion 21, he called it a step in the right direction with the function to absorb potential wide-ranging effects of conflict situations. Noting that the draft conclusions were left pending in the Drafting Committee without being considered by the plenary on an annual basis, he cautioned that this deviation from regular practice makes it more difficult for States to follow the Commission’s work.
Turning to the long-term programme of work of the Commission, he said that in view of its heavy workload, and given that the topics will remain on the agenda for a substantial amount of time, the long-term programme should not be overburdened.
PABLO ADRIÁN ARROCHA OLABUENAGA (Mexico), commending the Commission’s draft articles on “Crimes against humanity”, said he hoped that the Sixth Committee will not cast aside the possibility of adopting the texts into the form of a convention. States have an explicit obligation to prosecute and punish perpetrators of these crimes; while international bodies such as the International Criminal Court have a mandate to prevent impunity, they cannot be divorced from their complementary nature. The draft articles reflect existing principles of customary international law, including those of aut dedere aut judicare (extradite or prosecute), fair treatment of offenders and due process. He also congratulated the Commission for including an updated definition of “gender” separate from other restrictive, outdated definitions.
Turning to “Peremptory norms of general international law (jus cogens)”, he pointed out that, by definition, jus cogens norms cannot be derogated from; not even the Charter of the United Nations is exempt from the application of these norms. On this point, he said that the international community can reflect on the practice of States with regards to their obligations under the Charter on the one hand and jus cogens norms on the other. No Member States — not even permanent members of the Security Council — can deviate from the prohibition against crimes against humanity, genocide, war crimes and limits on the use of force. He thanked the Special Rapporteur for including an illustrative list of these norms, and said the list is useful in conducting a deeper analysis of this complex issue.
Regarding “Other decisions”, he commended the guidelines on the provisional application of treaties as they are of great assistance to delegations when they negotiate treaties. He also said he supported the Commission’s decision to establish a study group on “Sea-level rise in relation to international law”. This decision strengthens the Commission’s importance in the progressive development of international law. In addition, he called for the Commission to include “Universal criminal jurisdiction” in its programme of work.
MANUEL DE JESÚS PIREZ PÉREZ (Cuba), on “Crimes against humanity”, said the draft articles should also note that the primary responsibility for preventing and punishing serious international crimes committed under their jurisdiction should fall primarily on the State concerned. Only if States are unable or unwilling to exercise jurisdiction over those crimes would it be necessary to consider the application of other prosecution mechanisms. The Commission should continue to consider commentaries elaborated by States; that will enable the draft articles to be widely accepted by the international community and become a basis of an international conventional instrument. In addition, such a convention should avoid conflicts with international instruments already adopted. The Commission should evaluate the opportunity to classify the prohibition of crimes against humanity as a peremptory norm of general international law, bearing in mind that the Commission is currently working on the topic “Peremptory norms of general international law (jus cogens)”.
Turning to that matter, he said the Commission’s draft conclusions and annex on “Peremptory norms of general international law” could become a guide so that States and international organizations can identify both the emergence of such norms and the legal effects of those norms without entering a deep content analysis of them. In view of the technical nature of the topic, the draft conclusions should not be absolute or restrictive in their content or scope. Regarding draft conclusion 7, he said the observations of State players should not conflict with basic principles of international law. In draft conclusion 9, the qualifier “auxiliary means” for identifying peremptory norms is marked as positive. However, in the practice of international jurisdictional bodies, the degree of caution exercised when referring to a norm of jus cogens has been observed, he said, calling that action confusing and ambiguous.
Concerning “Sea-level rise in relation to international law”, he said that, although the practical implications of rising sea levels must be considered, modifying baselines and maritime boundaries and/or earmarking resources to ensure that baseline points or certain geographical features survive the rise would have a negative impact on small island developing countries, not to mention the respective legal insecurity. He urged the Commission to take into account the provision and the spirit of existing international law, including the 1982 United Nations Convention on the Law of the Sea, in order to maintain the stability and predictability of the existing law.
MARÍA DEL PILAR ESCOBAR PACAS (El Salvador), on “Crimes against humanity”, said the draft articles represent a significant contribution to establishing States’ national jurisdiction for this type of crime. The text of draft article 2 has been improved to provide more guarantees and uses a broader definition. Highlighting the term “forced disappearance” in article 2, she said that could be interpreted in a broader manner using other international instruments such as the International Convention for the Protection of All Persons from Enforced Disappearance.
Turning to “Peremptory norms of general international law (jus cogens)”, she said that the methodology of the draft conclusions must take into account legislative and judicial practices that would inform States and international organizations. Highlighting draft conclusion 5, which relates to the basis of peremptory norms and general international law, she noted that international law is an interrelated system and this interrelationship should be seen reflected in the sources of normative production. In draft conclusion 14, it is relevant to include in paragraph 1 the phrase “that is not of a jus cogens nature” to clarify that this is a norm of customary international law. That distinction makes it possible to harmonize that paragraph with paragraph 2.
On “Other decisions”, she voiced support for the new topic, “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law”.
BORUT MAHNIČ (Slovenia), speaking on “Crimes against humanity”, noted that the definition of gender in draft article 2 no longer reflects the current understanding of the notion; he expressed support for its omission. Concerning draft article 14 on mutual legal assistance, he said that paragraph 9 should also refer to international criminal courts and tribunals; the reasoning for excluding those bodies is unconvincing. Slovenia is one of the initiators of the Mutual Legal Assistance initiative, he pointed out. While recognizing the convergent qualities with the International Law Commission’s handling of the “crimes against humanity” topic, he said that the initiative focuses on the practical usability of mutual legal assistance and extradition procedures. In addition, its procedural provisions are more extensive than those of the International Law Commission’s draft articles. Nevertheless, both efforts are complementary, and the overriding consideration should be the avoidance of diverging substantive treaty provisions, he said.
Turning to “Provisional application of treaties”, he said Slovenia is ready to submit a written proposal on draft model clause 1 and thus allow States to complete the relevant internal treaty‑making procedures before provisionally applying it.
ELENA A. MELIKBEKYAN (Russian Federation), calling attention to the fact there was no English-language version of her statement available to the Committee, said that was due to an American visa being denied to the member of her country’s delegation who was responsible for translation. While she commended the Commission’s work, which had studied academia and the judiciary in her country, she said its agenda is overburdened. The Commission’s work programme should focus on requests from States who, in turn, should be given time to respond to proposed drafts and be a part of the process. The Commission should pause the transfer of topics from its long-term programme of work to its current agenda.
On “Crimes against humanity,” she said that the Commission’s consideration of State view and practice is a prerequisite for it to retain its authority to consider a broad range of legal topics. The possibility of drawing up a convention based on the draft articles needs more time for consideration, as States still have comments on and proposals for the articles, and certain States are drafting a separate instrument relating to these crimes. She also critiqued article 2’s definition of such crimes and questioned what the consequences would be if certain crimes were granted the status of peremptory norms while others — included in other international instruments or domestic law — were not.
Turning to “Peremptory norms of general international law (jus cogens)”, she said she supported the Commission’s decision not to include a separate draft conclusion on regional jus cogens norms. Referring to conclusion 21, she said that it is problematic to include mechanisms for dispute settlements. While comments note that this conclusion was based on article 66 of the Vienna Convention on the Law of Treaties, she disagreed with this claim; the conclusion sets forth dispute-settlement procedures for norms of international law as a whole that any interested State can initiate. There is no confirmation for this in contemporary international law. Further, including a list of jus cogens norms was inappropriate as the topic at hand is methodological in nature. The Commission was tasked with establishing a process for identifying peremptory status for each norm independently, and the list does not advance that goal. Its inclusion could have far-reaching consequences, as the list is likely to be used not to identify new peremptory norms but to prove the presence or absence of such a norm based on those included in the list, she said.
GORDANA VIDOVIĆ MESAREK (Croatia), aligning herself with the European Union on “Crimes against humanity”, voiced support for the Commission’s recommendations concerning the draft articles and codifying them into a convention.
Turning to “Succession of States in respect of State responsibility”, she said that her country — as “a victim of the worst crimes committed in Europe after the Second World War, during and after the process of dissolution of the predecessor State, consequences of which crimes are still present today” — attaches great importance to this topic. Voicing support for the approach that would endorse the general rule of “non-succession” with some well-defined exceptions, she stressed the need to maintain consistency, both in terminology and in substance, with the previous work of the Commission, including the articles on responsibility of States for internationally wrongful acts.
Turning to “Peremptory norms of general international law (jus cogens),” she said that draft conclusion 14.3 seems to be contrary to point 11 of the commentary. While generally supportive of the proposal to include the illustrative list of jus cogens norms, she noted that the current non-exhaustive list of norms in the annex to draft conclusion 23 should be further considered.
Regarding “General principles of law”, she said the distinction between general principles of law and customary international law is highly important and crucial for this topic. This distinction is not clearly enough explained in the first report, particularly concerning the identification of the general principles of law formed within the international legal system.
Expressing appreciation for the interest shown by the Commission in “Sea-level rise in relation to international law”, she highlighted article 7 and article 18 of Croatia’s Maritime Code, which outlines the “internal waters” and “territorial sea” of the country.
SUSANA VAZ PATTO (Portugal), commenting on the Commission’s report and activities, highlighted the adoption of the draft principles on “Protection of the environment in relation to armed conflicts”, adding that her country would submit comments on the draft model clauses of “Provisional application of treaties”. The inclusion of “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law” will help advance an individual’s status under international law and the progressive development of a humanistic perspective of international law. As well, she noted her support for including “Prevention and repression of piracy and armed robbery at sea” in the long-term programme of work.
Addressing “Crimes against humanity”, and in particular draft article 2, she said she would have preferred a more dynamic definition that immediately benefited from amendments made to the definition in the Rome Statute. More so, international bodies, courts and tribunals have taken “gender” as a socially constructed concept. In that regard, the Commission should have gone further and included it in the text of article 2. Regarding the Mutual Legal Assistance initiative and the possibility of concluding an international convention to enhance States’ cooperation, she said those proposals are complementary; there are different ways in which they can be developed together. The existence of the two projects should not be used as an excuse for failing to proceed with any of them.
With respect to “Peremptory norms of general international law (jus cogens)”, she expressed concern about the identification of regional jus cogens, emphasizing the need for a careful approach. Discussions on regional jus cogens should not impair the integrity of peremptory norms of general international law as norms that are universally recognizable and applicable. They should also not lead to confusion between the concepts of jus cogens and regional customary law. The Commission’s non-exhaustive illustrative list of jus cogens norms seems too condensed, she said, observing that there are other widely recognized jus cogens norms that could be listed.
CORINNE BUHLER (Switzerland), addressing “Crimes against humanity”, said that a convention in this area would fill a gap in the existing international legal framework. It would establish a definition of crimes against humanity and set out corresponding obligations, especially regarding punishment and prevention at the national level, contributing to the fight against impunity for the most serious crimes. However, a future convention must not weaken existing obligations under international law or be inconsistent with a possible general convention on mutual legal assistance in the prosecution of international crimes.
Turning to “Peremptory norms of general international law”, she indicated that an illustrative list of such norms is too restrictive, adding that her country has considerable experience with jus cogens. Switzerland considers the equality of States; prohibition of piracy; prohibition of collective punishment; prohibition of unequal treatment; individual criminal responsibility; and personal culpability to be constitutive elements of jus cogens. She encouraged the Commission to carefully analyse States’ practices to broaden the scope of the illustrative list. At the very least, she welcomed inclusion of a general provision stating that the illustrative list does not exclude a broader understanding of jus cogens.