‘Ours Is a Common Endeavour’, International Law Commission Chair Tells Sixth Committee, as Review of Annual Report Begins

Representatives Tackle First Cluster on Peremptory Norms, Protection of Environment in Relation to Armed Conflicts, Other Decisions

As the Sixth Committee (Legal) began its consideration of the International Law Commission report today, speakers tackled the first of three clusters of topics, including the chapters on “Peremptory norms of general international law (jus cogens)”, “Protection of the environment in relation to armed conflicts”, “Introductory Chapters” and “Other decisions and conclusions of the Commission”.

Before the Sixth Committee was the report of the International Law Commission of its seventy-third session (document A/77/10).

Pedro Comissário Afonso (Mozambique), Chair of the Sixth Committee, emphasized the importance of the International Law Commission’s work for the progressive development and codification of international law, calling the elaboration of norms addressing major global challenges “one of the most important tools we have at our disposal”.

Highlighting that this is the most important time for the General Assembly and the Commission to interact to fulfil their common responsibility, he stressed that the present debate is “the most natural and transparent way of interaction between the two bodies”.  Detailing the 10 chapters in 3 clusters to be reviewed over the next week, he invited the Sixth Committee to “use this occasion to the fullest extent”.

Dire D. Tladi (South Africa), Chair of the International Law Commission, addressing the Sixth Committee via a pre-recorded video briefing, stressed he “would have moved heaven and earth” to attend the session in person.  He reported on the Commission’s remarkable progress during its session, noting that, among other achievements, it adopted 23 draft conclusions and an annex related to identification and legal consequences of peremptory norms of general international law (jus cogens).  It also adopted a draft preamble and 27 draft principles in relation to the protection of the environment in relation to armed conflicts.

Giving an overview of the clusters by chapter, he said that the draft conclusions on Chapter IV, “Peremptory norms of general international law (jus cogens)”, of which he served as Special Rapporteur, refer to the identification and legal consequences of peremptory norms.  Highlighting the relationship between jus cogens norms and obligations erga omnes, the document seeks to provide a toolbox for a process that leads to a systematic identification of such norms and their legal consequences.

With regards to Chapter V, “Protection of the environment in relation to armed conflicts”, he said that the Commission adopted the entire set of draft principles that tackled the matter before, during and after an armed conflict, including in situations of occupation.  The draft preamble provides a conceptual framework for the draft principles and sets out their general context and purpose.

Turning to Chapter VI, “Immunity of State officials from foreign criminal jurisdiction”, he said that the draft articles provide a general regime for the immunity of State officials from foreign criminal jurisdiction.  Among other things, the draft articles also deal with “Immunity ratione personae”, identifying the persons to whom this status‑based immunity applies, and address the traditional procedural provisions on invocation and waiver of immunity.

Regarding Chapter VII, he said that the report of its Special Rapporteur covered, inter alia, the question of a plurality of injured successor States and that of responsible successor States.  Chapter  III covers the topic “General principles of law” as a source of international law.  The Drafting Committee was able to conclude the substantive consideration of the five draft conclusions presented in the report and undertook a final review of the entire set of the draft conclusions to ensure their coherence.

On Chapter IX, “Sea-level rise in relation to international law”, he noted that a study group was established focusing on the subtopics of Statehood and the protection of persons affected by sea-level rise.  In this regard, he underscored that the International Law Commission and the Sixth Committee have a shared interest in the progressive development of international law and its codification.  “Ours is a common endeavour,” he emphasized.

In the ensuing debate, among the several chapters discussed, many speakers expressed the need for more clarifications on how peremptory norms of general international law (jus cogens) were interpreted and debated the role of the occupying Power in the protection of the environment in relation to armed conflicts.

The representative of Hungary stressed that now was a time when “Peremptory norms of general international law”, such as the prohibition of aggression and the right to self-determination, could not be overstated.  Because international law is a dynamic system that changes, the content of such norms could slightly change over the decades.  However, although the draft conclusions provide clear steps on how to identify peremptory norms, there is no guidance on their review, she noted.

Similarly, India’s representative, pointing out the some of the norms listed in the related annex are not well defined in international law and their interpretation of their applicability differs from State to State, said that peremptory norms of general international law are hierarchically superior to other norms of international law.  Thus, the standards to identify them must be clear and unambiguous.

The delegate of Jordan, however, said that draft conclusions do not set criteria for the identification of jus cogens norms and are rather descriptive of their nature.  He stressed that the most important aspect is that the norms protect the international community’s fundamental values as a whole, a wider concept than the fundamental values of the international community of States as a whole.

The representative of Greece, commenting on “Protection of the environment in relation to armed conflicts”, noted that it should provide guidance on how and to what extent other rules of international law interact with the ius in bello rules.  Spotlighting the issue of the sustainable use of natural resources in an occupied territory, she clarified that third States should abstain from any resource transaction which might entrench occupation.

Echoing this stance, the delegate of Belarus noted that occupation of a State’s territory normally renders it unable to exercise its sovereign rights or fulfil its obligations to protect the environment.  Therefore, imposing these obligations on an occupying party exercising de facto control over a territory is the only possible, justified legal means of action.  A detailed, comprehensive international legal regulation is needed to define the degree to which an occupying party has the authority to manage the natural resources of an occupied territory.

The representative of Egypt, the host country of the upcoming twenty‑seventh Conference of the Parties of the United Nations Framework Convention on Climate Change (COP27), welcomed the draft principles that address the protection of the environment before, during and after armed conflict.  Moreso, he emphasized that the international responsibility to protect certain regions and the responsibility of an occupying power to the environment in principle 11 are not simply slogans.

Nigeria’s delegate, speaking for the African Group, highlighted the election of the first African female member of the Commission and commended the steps taken by the Commission to account for diversity in legal traditions, geography and language in its work to promote the progressive development and codification of international law.  He also encouraged the Commission to draw inspiration from the contemporary world’s principal legal systems, including African customary law, and to develop cooperative relationships with regional international law commissions, such as the African Union Commission on International Law.

Also speaking were representatives of Norway (also for Denmark, Finland, Iceland and Sweden), Singapore, Australia, Iran, Italy, El Salvador, China, United States, Canada, Philippines, Malaysia, Austria, Mexico, Germany, Brazil, Slovenia, Slovakia, Estonia, Pakistan, Romania, Czech Republic, Colombia and Cuba, as well as the representative of the European Union, in its capacity as observer.

The Sixth Committee will next meet at 10 a.m. on Wednesday, 26 October, to continue its discussion of the first cluster of topics from the International Law Commission’s report on the work of its seventy-third session.

Introduction to International Law Commission Report

PEDRO COMISSÁRIO AFONSO (Mozambique), Chair of the Sixth Committee (Legal), welcomed Dire D. Tladi of South Africa, Chair of the International Law Commission, noting that the Chair will introduce the Commission’s report on the work of its seventy-third session via recorded video.  He also recalled that the Chair also served as the Special Rapporteur on the topic “Peremptory norms of general international law (jus cogens)”.  The Commission’s work was important for the progressive development and codification of international law, he stressed, adding that the elaboration of norms addressing major global challenges “is one of the most important tools we have at our disposal”.

He went on to say that this is the most important time and forum for the General Assembly and the Commission to interact to fulfil their common responsibility.  Government comments and presented State practice shape the outcome of the Commission’s work.  The present debate – along with written comments sent to the Commission – is “the most natural and transparent way of interaction between the two bodies”.  He therefore invited the Committee to “use this occasion to the fullest extent”.

Outlining the Committee’s programme of work, he said that it will consider the Commission’s report in 3 clusters covering 10 chapters.  Cluster 1 consists of “Introductory Chapters”, “Other decisions and conclusions of the Commission”, “Peremptory norms of general international law (jus cogens)” and “Protection of the environment in relation to armed conflicts”.  The Committee will discuss this cluster between 25-27 October.  Cluster 2 includes “Immunity of State officials from foreign criminal jurisdiction” and “Sea-level rise in relation to international law”, which the Committee will consider on 27-28 October and 1 November.  Cluster 3 – “Succession of States in respect of State responsibility” and “General principles of law” – will be taken up on 2 and 3 November.

DIRE D. TLADI (South Africa), Chair of the International Law Commission, addressed the Sixth Committee via a pre-recorded video briefing.  Expressing deep disappointment, he said that he “would have moved heaven and earth” to attend the session in person.  Recognizing that the past two years have been daunting in world affairs, he highlighted the myriad of challenges caused by the COVID‑19 pandemic, including its impact on the global environment.  Commending the Commission’s work and remarkable progress achieved, he introduced the report of the Commission’s seventy-third session (document A/77/10) in a single intervention, while the Committee’s debate would continue to take place in clusters.

Turning to the Commission’s overall input summarized in Chapter II, he reported that it adopted the entire set of draft conclusions on identification and legal consequences of peremptory norms of general international law (jus cogens), that comprise 23 draft conclusions and an annex.  The Commission also adopted the entire set of draft principles on protection of the environment in relation to armed conflicts, consisting of a draft preamble and 27 draft principles.  Finally, the Commission completed, on first reading, an entire set of 18 draft articles and a draft annex on immunity of State officials from foreign criminal jurisdiction. 

Given the number of topics completed or expected to be completed, he reported that the Commission decided to include three new topics in its programme of work: “Settlement of international disputes to which international organizations are parties”; “prevention and repression of piracy and armed robbery at sea”; and “Subsidiary means for the determination of rules of international law”.  In this regard, it has requested the Secretariat to prepare memorandums on those topics and conduct a study on the sea-level rise in relation to international law.  The Commission also included the topic “Non-legally binding international agreements” in its long term programme of work, making a total of eight topics included on the long term programme.  Aside from the substantive work, it re-established the Working Group on working methods.  The Commission decided that its seventy-fourth session would be held in Geneva from 24 April to 2 June and from 3 July to 4 August 2023. 

In Chapter IV on “Peremptory norms of general international law (jus cogens)”, which he served as Special Rapporteur since 2015 when the topic was placed on the programme of work of the Commission, he said that the Commission adopted the entire set of draft conclusions on the identification and legal consequences of peremptory norms.  Detailing certain parts of the text, adopted at the second reading, he said that the draft conclusions also consider the relationship between jus cogens norms and obligations erga omnes.  In this connection, the draft conclusions note that peremptory norms of general international law (jus cogens) give rise to obligations owed to the international community as a whole (obligations erga omnes), in relation to which all States have a legal interest.  Consequently, the document seeks to provide a toolbox for a process that leads to a systematic identification of such norms and their legal consequences, in accordance with a generally accepted methodology.

Turning to Chapter V, “Protection of the environment in relation to armed conflicts”, he noted that the Commission adopted the entire set of draft principles that deal with the protection of the environment before the outbreak of an armed conflict, during an armed conflict and after an armed conflict, including in situations of occupation.  The provisions have been cast as draft “principles” and bear different normative value, including those that reflect customary international law, and those containing recommendations for progressive development.  He underscored that the respective draft principles refer consistently to the “environment” instead of to the “natural environment”, in line with the established terminology of international environmental law.  The draft preamble, added in light of comments made by Governments, international organizations and others, provides a conceptual framework for the draft principles, setting out their general context and purpose.

In Chapter VI, “Immunity of State officials from foreign criminal jurisdiction”, draft articles, contained in four parts, provide a general regime for the immunity of State officials from foreign criminal jurisdiction.  Here, the Commission also considered the usefulness of defining such terms as “criminal jurisdiction", “exercise of criminal jurisdiction", “immunity from criminal jurisdiction”, and “inviolability”.  However, the Commission came to the conclusion that such an exercise would be unnecessary and difficult to accomplish.  He also noted, among other things, that the draft articles dealing with “Immunity ratione personae” are confined to identifying the persons to whom this status-based immunity applies, namely the Head of State, the Head of Government and the Minister for Foreign Affairs.  In addition, the final part on “procedural provisions and safeguards” addresses the traditional procedural provisions associated with invocation and waiver of immunity, and offers additional safeguards which the Commission views as useful considering the nature of the topic and its potential impact on international relations.

Turning to Chapter VII, “Succession of States in respect of State responsibility”, he noted that the report of the Special Rapporteur covered, inter alia, the question of a plurality of injured successor States and that of responsible successor States.  In this regard, the Commission decided, based on the recommendation of the Special Rapporteur, that the Drafting Committee proceed to prepare draft guidelines in reference to the provisions previously referred to the Drafting Committee (including those provisions provisionally adopted by the Commission at previous sessions), taking into account the plenary debate. 

Chapter VIII covers the topic “General principles of law” as a source of international law, he continued.  The report addressed the issue of transposition of principles common to the various legal systems of the world to the international legal system, the identification of general principles of law formed within the international legal system and the functions of general principles of law and their relationship with other sources of international law.  The Drafting Committee was able to conclude the substantive consideration of the five draft conclusions presented in the report and undertook a final review of the entire set of the draft conclusions to ensure their coherence.  The Commission provisionally adopted draft conclusions 3, 5 and 7, with commentaries thereto and also took note of draft conclusions 6, 8, 9, 10 and 11, as provisionally adopted by the Drafting Committee.

On the last substantive chapter of the report, Chapter IX, “Sea-level rise in relation to international law”, he noted that a Study Group was established focusing on the subtopics of Statehood and the protection of persons affected by sea-level rise and reported on its potential work frame in 2023-2025 with a view to finalize a substantive report by consolidating the results of the work undertaken.

The International Law Commission and the Sixth Committee have a shared interest in the progressive development of international law, and its codification, he emphasized.  This relationship went back to the founding of the United Nations.  The interaction that the Commission has with the Sixth Committee during the debate on the annual report, during the interactive dialogue, as well as the written comments received, provides a useful framework for enriching the work product of the Commission, he said, adding that it looked to the Sixth Committee for valuable comments on its work. “Ours is a common endeavour”, he said. 

Statements on Cluster 1

LUCIO GUSSETTI, representative of the European Union, in its capacity as observer, reiterated the need to enhance the texts on “Protection of the environment in relation to armed conflicts”.  In expressing support for the application of principles before, during and after an armed conflict, he welcomed the inclusion of States, international organizations and other actors in the protection of the environment.  As principle 3 includes all relevant treaty-based and customary law obligations related to the protection of the environment, he spotlighted point 10 of the commentary to emphasize the obligation to investigate war crimes concerning the environment and to prosecute suspects if appropriate.  In calling for objective and clearly defined criteria for principle 4 on the designation of protected zones by States, he suggested including considerations of biodiversity, cultural importance and special status under international or national law.  He then noted that principle 5 protects the lands and territories inhabited by indigenous communities.

Turning to principle 9, he reaffirmed the international responsibility of States for intentionally wrongful acts, adding that environmental damage caused in armed conflict is compensable under international law.  On principles 8 and 13, he noted that the general obligation to avoid establishing military objectives in environmentally protected areas should have been considered.  Principle 19, on the general environmental obligations of an occupation power, is likely to prejudice the health and well-being of protected persons, he pointed out.  The most extensive protection should apply to all civilians within protected territories.  Protection should also be afforded to water bodies and systems, treatment and sewage systems, and other natural and human-made infrastructure, as well as toxic and other civilian objects which endanger the environment.

MIRJAM BIERLING (Norway), also speaking for Denmark, Finland, Iceland and Sweden, noting that substantial progress was made on certain topics on the Commission’s agenda.  In particular, regarding “Immunity of State officials from foreign criminal jurisdiction”, she highlighted the adoption of 18 draft articles and a draft annex.  She also took note of the report’s requests for information, emphasizing that examples of State practice are important for many topics currently under consideration and encouraging submission of the same.  Stressing that the Commission must be provided with adequate resources to fulfil its mandate from the regular budget, she also spotlighted the possibility of establishing a trust fund to facilitate additional support.  Additionally, she welcomed the inclusion of the following topics, as they are important additions to the Commission’s work on the sources of international law: “Settlement of international disputes to which international organizations are parties”; “prevention and repression of piracy and armed robbery at sea”; and “Subsidiary means for the determination of rules of international law”.

Turning to “Peremptory norms of general international law (jus cogens)”, she welcomed the Commission’s submission of its draft conclusions on this topic.  Noting that the Commission had to finalize its work thereon while the Russian Federation’s invasion of Ukraine was ongoing, she underscored that this serious breach of a peremptory norm emphasizes the significance of this body of law now systematized by the Commission’s draft conclusions.  She went on to say that this topic is best dealt with through a conceptual, analytical approach, rather than one that aims to elaborate a new normative framework for States.  Considering the relatively limited and varying State practice, “codification might not be the most prudent way forward”, she added.  She also stressed that interpretations on the consequences and effects of jus cogens norms must be based on the position of States, not that of other actors.  The role of expert bodies as subsidiary means for the determination of the peremptory character of such norms should be approached with caution.

On the “Protection of the environment in relation to armed conflict”, she pointed out that ongoing armed conflicts – such as the Russian Federation’s war of aggression in Ukraine – have showcased the devastation inflicted on the environment through strikes on chemical plants, refineries and pipelines.  She also spotlighted “the horror of military actions taking place in the vicinity of nuclear power plants”, which underlined the consequent timeliness and importance of the draft principles on this topic.  Such principles will become an instrument of legal reference in this area due to their high quality and all-encompassing nature, along with the fact that they were developed in close consultation with States and relevant international and expert organizations.  Drawing attention to the importance of several of the draft principles, she welcomed that the protection of the environment of indigenous peoples is addressed in its own draft principle.  On that point, she emphasized the participatory rights of indigenous peoples relating to their lands, territories and resources.

DAPHNE HONG (Singapore), turning to “Peremptory norms of general international law”, said the reference to the international community “as a whole” in draft conclusion 7 had quantitative as well as qualitative elements, and the term “virtually all States” was required to convey the requisite quantitative meanings.  She said that draft conclusion 21 was unnecessary and not appropriately placed in a set of draft conclusions dealing with the methodology for the identification and legal consequences of peremptory norms of general international law.  Noting her concerns with draft conclusion 23, she said users of this work may think the list is definitive.  Further, the list is not derived using the methodology which the Commission itself developed to identify jus cogens norms in the draft conclusions.

Regarding “Protection of the environment in relation to armed conflicts”, she congratulated Special Rapporteur Marja Lehto and the Commission on the adoption of the draft principles.  Those texts represented the outcome of an extensive study into an important topic that cuts across many issues.

Turning to “Other decisions and conclusions of the Commission” and acknowledging the re-establishment of the Working Group on the Commission’s methods of work, she said she looked forward to updates and close collaboration between the Commission and the Sixth Committee.  She also voiced her support for including the topic “non-legally binding international agreements” in the Commission’s long-term programme of work.  States’ prevalent use of non-legally binding memorandums of understanding or agreements illustrates the practical significance of this topic.  If moved to the Commission’s programme of work, she said she hoped the Commission will notice the rich practice by member States of the Association of Southeast Asian Nations (ASEAN) on this issue.

ALAA NAYEF AL-EDWAN (Jordan), on “Peremptory norms of general international law”, said that draft conclusion 2 does not set criteria for the identification of jus cogens norms, but is mainly descriptive of their nature.  The most important aspect is that jus cogens norms protect the international community’s fundamental values as a whole, a wider concept than the fundamental values of the international community of States as a whole.  On draft conclusion 5, he said that the relevant practice shows that only customary international law forms a basis for jus cogens norms.  Nonetheless, he voiced his support for the distinction made in the draft conclusion, which highlights customary international law as a basis over treaty rules and the general principles of law.  On draft conclusion 16, he welcomed the reiteration that jus cogen norms are superior to binding resolutions and decisions of international organizations, but they should not be used by States as a pretext to avoid carrying out their obligations under such decisions or resolutions that are otherwise binding.

Turning to the “Protection of the environment in relation to armed conflict”, he added his support for the project’s approach in covering the three stages of the conflict: pre-conflict, during conflict and post-conflict, while acknowledging that certain principles apply mutatis mutandis to those three stages.  He welcomed draft principle 8 on human displacement and the need for States, international organizations and other relevant actors to take appropriate measures towards the environment in areas where persons displaced by armed conflict are located.  He noted that he did not believe the inclusion of draft principles on State responsibility and non-prejudice clauses on the responsibility of other actors are necessary.  Instead, the Commission should have tackled the problem of attribution of environmental damage in the event of armed conflict, which is complex and elusive in international environmental claims.  Regarding the prohibition of the pillage of natural resources, he reiterated that the prohibition applies to private acts as well as acts by the occupying authority.

ADAM MCCARTHY (Australia), on “Peremptory norms of general international law”, said it was essential that the draft conclusions and their commentaries accurately reflect international law, are grounded in the practice of States and are practical.  In that regard, he underlined the importance of the information submitted by States this year.  He also reiterated that the standard for the identification of jus cogens norms in draft conclusion 7 should be acceptance and recognition by the international community of States as a whole.  He voiced his doubts as to the use of the non-exhaustive list referred to in the annex of draft conclusion 23; he would have preferred that in the commentaries, the Commission would have addressed a limited number of established jus cogens norms using the methodological approach established by the draft conclusions.

On “Protection of the environment in relation to armed conflicts”, he reaffirmed his support for the call for States, pursuant to their obligations under international law, to take effective measures to enhance the protection of the environment in relation to armed conflict.  He welcomed the Commission’s guidance on additional measures States could take to further that objective.  He encouraged all States to take concrete measures to enhance respect for international humanitarian law rules protecting the natural environment, including disseminating these rules and their incorporation into military manuals, as well as national policy and legal frameworks.  In reference to the Commission’s draft principles, he welcomed references to “applicable international law”, which highlight that this topic does not suggest new or amended interpretations of existing international humanitarian law.  He also emphasized that there are substantive differences, under international humanitarian law, between obligations related to international conflicts and those related to non-international conflicts.  The draft principles do not currently provide differentiation.

ZINOVIA STAVRIDI (Greece), speaking on “Peremptory norms of general international law”, welcomed conclusion 2 in which the persistent objector rule does not apply to peremptory norms and that such norms do not apply on a regional or bilateral basis.  As jus cogens norms reflect and protect the fundamental values of the international community, there should be affirmative language in paragraph 19 of the commentary which recognizes this criterion for a norm to qualify as peremptory.  The finding that the characteristics of jus cogens are not criteria for the identification of a peremptory norm was questionable, she noted.  Regarding conclusion 21 on a State’s invocation of a peremptory norm to invalidate or terminate a rule of international law, she pointed out that the recommended procedure might not always work in relation to acts of international organizations.  She then welcomed the non-exhaustive list of norms and spotlighted the prohibition of aggression.

Turning to the “Protection of the environment in relation to armed conflicts” and associating herself with the European Union, she highlighted the inclusion of protected zones established by agreement, an international organization or relevant treaty body in principle 4.  Principle 13 on the protection of the environment should refer to other rules of international law which remain relevant during armed conflict, she noted.  It should also provide guidance on how and to what extent such rules interact with the ius in bello rules.  On principle 20 on the sustainable use of natural resources in an occupied territory, she called for commentary clarifying that third States should abstain from any resource transaction which might entrench occupation.  For principle 27 on the remnants of war at sea, she said she would have preferred a reference to the 1982 United Nations Convention on the Law of the Sea in the text.

MOHAMMAD SADEGH TALEBIZADEH SARDAR (Iran), on “Peremptory norms of international law”, asked the Commission to clarify whether its draft conclusions are prescriptive or descriptive in nature; to define their scope; and to determine their status in international law.  He also asked the Commission to elucidate the meaning and scope of the concept of “codification by interpretation” referred to by the Special Rapporteur on this topic.  He went on to say that the draft conclusions should be regarded as the progressive development of international law, as they reflect State practice and the jurisprudence of the International Court of Justice.  Detailing his position on specific draft conclusions, he said that the Commission should have taken into consideration that certain States’ persistent objections could be relevant in the process of identifying peremptory norms; such objections are relevant to the formation of rules of customary international law.  The standard for establishing the former can be no less than that required to establish the latter.

Turning to “Protection of the environment in relation to armed conflict”, he pointed out that customary rules and provisions of treaty law governing armed conflict prohibit belligerent parties from inflicting unnecessary damage on the environment.  Further, the general principles of customary international law contain specific rules pertaining to the protection of the environment.  Therefore, the draft principles should reflect written rules of international law or international custom and, where they reflect recommendations aimed at the progressive development of international law, they do not, and cannot, give rise to new State obligations.  He also said that a threshold should be established for long-term, widespread and severe damage; otherwise, this could not be regarded as the progressive development of international law and would be a mere repetition of that already asserted in previous documents codified by States.

On the topic, “Other decisions and conclusions of the Comission”, he said that his country’s position remains unchanged on the inclusion of “prevention and repression of piracy and armed robbery at sea”.

TIJJANI MUHAMMAD BANDE (Nigeria), speaking for the African Group, spotlighted the election of the first African female member of the Commission.  He then took note of the steps taken by the Commission to account for diversity in legal traditions, geography and language in its work to promote the progressive development and codification of international law.  He reiterated that this process must always be inclusive in its consideration of legal texts, State practice, precedents and doctrines, as required by the Statute of the International Law Commission.  Further, the Commission should develop cooperative relationships with regional international law commissions, such as the African Union Commission on International Law.  It should also draw inspiration from the contemporary world’s principal legal systems, including African customary law.

He went on to recall the African Group’s call during the seventy-sixth session for the Commission to consider a balanced approach when deciding to add new topics, one that accounts for the practical interests of Member States.  The Group also called for a balanced selection of Special Rapporteurs, as this could help to enhance the legitimacy of the Commission’s work.  Against that backdrop, he noted the Commission’s decision to include the topics of “prevention and repression of piracy and armed robbery at sea” and “subsidiary means for the determination of rules of international law’, as well as its appointment of Yacouba Cissé and Charles Jalloh, respectively, as Special Rapporteurs.  He also welcomed the Commission’s work to hold its meetings in a hybrid format and webcast its plenaries, which increased accessibility to its work.

STEFANO ZANINI (Italy), speaking on “Peremptory norms of general international law (jus cogens)”, said that he shared the view of the Special Rapporteur regarding conclusion 3 on the hierarchical superiority of jus cogens norms in relation to other ordinary rules of international law.  To this end, he underlined the importance to the autonomous categories of peremptory norms of general international law and erga omnes obligations, which protect the fundamental interests of the international community as a whole.  He also endorsed the general approach of the draft conclusions to the process of identification of jus cogens norms.  However, he requested clarification on the concept of “evidence” and, more specifically, on the individual assertions by States that a norm is accepted and recognized as one from which no derogation is permitted.

With regard to conclusion 8, he welcomed the inclusion of the constitutional provisions among the forms of evidence of acceptance and recognition.  However, he noted that the commentary could have made a more remarkable reference to the constitutional provisions as interpreted and applied by the jurisprudence of constitutional courts.  Addressing part IV, he stressed, among other things, that the respective conclusions could have provided further guidance to States on the interrelation between the peremptory character of jus cogens norms and its consequences on the principle of sovereign equality of all States, especially on the immunity of States and State officials from foreign jurisdiction.

Turning to the “Protection of the environment in relation to armed conflicts”, he expressed a wish to insert into the draft preamble the accurate description of the scopes ratione temporis and ratione materiae of the draft principles and the reference made to their application in cases of occupation.  Offering relevant suggestions regarding the respective draft principles of parts II and III, he further welcomed the inclusion of the principles applicable in situations of occupation to part IV of the report and expressed appreciation of the reference made to the prevention of transboundary harm in the draft principle 21.  However, he pointed out that the topic of environmental transboundary harm, because of its importance in international law, should have been addressed beyond situations of occupation.  Finally, he suggested that the Commission could have made a more specific reference to the application of the core principle of self-determination of peoples in the use of natural resources in the context of occupation.

LIGIA LORENA FLORES SOTO (El Salvador), speaking on “Peremptory norms of general international law (jus cogens)”, noted that the draft conclusions respect a balance between States practice and the relevant jurisprudence of international courts and bodies.  The essence of the draft conclusions should be based on the fact that they are guiding in nature.  This, however, should not prevent the conclusions from progressively generating binding effects, where they are applied repeatedly.  She welcomed the decision of the Commission to include a non-exhaustive list of peremptory norms in the annex of the report.  Detailing the relevant draft conclusions, she requested a clarification on which international or intergovernmental conferences are being referred to under conclusion 8, noting that the category of "international organizations" can encompass sub-specializations within the regional scope. 

Turning to “Protection of the environment in relation to armed conflicts”, she stressed the significance of protecting the right to a healthy environment.  In this regard, she referred to the decision of the Inter-American Court of Human Rights that spotlighted the importance of the protection, preservation and improvement of the environment and the conforming to the relevant protocol of the American Convention on economic, social and cultural rights.  She also called attention to ensuring the protection of the environment regardless of the means of occupation or the circumstances that caused the armed conflict.  She further requested a clarification regarding the use of the term “military objective” in principle 13.

On “Other decisions and conclusions of the Commission”, she welcomed the new topics included in the Commission's programme of work.  These should include the practices of States as a whole, including relevant actors of the international community from different legal systems and regions of the world.  Regarding the mandates assigned to the Study Group on the issue of sea level rise, she said her country will, in due course, share their observations regarding these, considering that some go beyond the competence attributed to the Commission.

JIA GUIDE (China) encouraged the Commission to play a larger role in the codification and progressive development of international law.  As countries have raised a number of observations on clarifying and improving current international rules, the Commission should enhance Member State engagement, listen to their concerns and adopt a more targeted approach which is based on the practical needs of the international community when selecting topics.  The Commission must improve its methods of work and must not separate the codification or progressive development of international law from State practices.  The Commission should further clarify the criteria and basis for different draft outcomes.  To increase transparency and efficiency, topics must be clearly defined and placed in the appropriate categories.

Turning to “Peremptory norms of general international law”, he urged a solid, practical, theoretical and consensual basis for the elaboration of relevant rules.  Regarding conclusion 16 on the issue of a Security Council resolution which conflicts with jus cogens norms, he recalled that Article 103 of the Charter of the United Nations states that obligations under the Charter prevail over those of any other international agreement.  The explanation offered in the commentary has flawed legal logic which does not see an issue of prevalence, he said, while warning that it would likely lead to the evasion and invalidation of Article 103.  As conflicts between a Council resolution and jus cogens norms are merely theoretical, he called for a prudent consideration of the relationship which maintains the Charter’s authority and the United Nations collective security mechanism.  On the list of norms in the annex, he suggested that the gradual formulization of recognized jus cogens norms based on relevant identification criteria would be more helpful at this stage.

Commenting on the “protection of the environment in relation to armed conflicts”, he expressed concern over the draft principles’ application to international and national armed conflicts.  Both differed vastly in terms of their nature, the parties involved and the degree of harm, he pointed out.  He then questioned the application of principle 13 — which originates from the Additional Protocol to the Geneva Conventions — on non-international armed conflicts as an example.

RITA SILEK (Hungary) stressed that now was a time when “Peremptory norms of general international law”, such as the prohibition of aggression and the right to self-determination, could not be overstated.  The draft conclusions enhance the coherence and transparency of the international legal system by proposing a transparent procedure to identify jus cogens norms.  Stressing that the present conclusions are an important step to a more uniform interpretation of international law, she noted two issues not explicitly dealt with in the conclusions: the collision of peremptory norms and changes of peremptory norms.

Regarding the first issue, she said that, while the conclusions address cases of collision between jus cogens norms and other sources of international law, they do not deal with cases of collision between jus cogens norms themselves.  Therefore, it is unclear how States are to settle cases where collisions between peremptory norms occur.  Noting that international law is a dynamic system that changes, she said that while jus cogens norms are the pillars of the international legal system, it is possible that the content of such norms slightly changes over the decades.  Although the conclusions clearly give steps to identify peremptory norms, there is no guidance on their review, she pointed out. 

RICHARD VISEK (United States), speaking on “Peremptory norms of general international law (jus cogens)”, noted his disagreement with several draft conclusions.  Addressing conclusion 7, arguably one of “the most important element of this project”, he said he disagreed with the rendering of the acceptance by “the international community of States as a whole” as “acceptance and recognition by a very large and representative majority of States”.  He also expressed concern with the “very large majority” framing and the addition of the word “representative”, which seems to introduce further uncertainty as to the requisite nature of acceptance.  He further expressed disagreement with conclusion 8, 16 and 19 respectively, noting that a State’s support for a resolution can only express its political support, whereas the “relevant evidence” is confirmed through the State’s conduct in connection with the resolution.  Reiterating his disagreement with the inclusion of the non-exhaustive list in the annex, he expressed concern that it may be given undue weight by judges and practitioners.

Turning to the “Protection of the environment in relation to armed conflicts”, he said that the United States military has a robust programme to implement the law of war during military operations, including the rules and principles that provide for the protection of the environment.  Moreover, it has adopted a number of policies and practices to protect the environment in relation to military operations and activities.  Recalling that international humanitarian law is treated as “lex specialis”, he pointed out a number of principles that conflict with this law by suggesting prioritization of environment over humanitarian law.  He expressed concern that this would not only conflict with the existent humanitarian law but would also fail to reflect the humanitarian purpose of it.

Touching upon the newest projects added to the Commission’s programme of work, he reiterated his country’s support for those topics.  He, however, also recalled his country’s concerns regarding the Commission’s work methods, including lack of clarity between codification and progressive development, as well as confusion about how the Commission chooses the format of its work products. 

ALAN KESSEL (Canada), on the “Protection of the environment in relation to armed conflicts”, expressed regret over the decision to avoid distinguishing between international and non-international armed conflicts.  Such detracts from the overall coherence of the draft principles, especially in part III where many are based on articles from Additional Protocol 1 to the Geneva Conventions.  He then expressed further regret over the use of mandatory verbs in several draft principles to create new norms or extend well-settled rules.  Such verbs should only be reserved for draft principles constituting lex lata, he emphasized.  On the commentary to draft principle 3, he disagreed with the interpretation that States are required to exert their influence to prevent and stop violations of the law of armed conflict.  Common article 1 of the Geneva Conventions in the commentary to draft principle 3 does not entail such a duty, he said.

Turning to the “Peremptory norms of general international law”, he urged further discussions on several draft conclusions.  Draft conclusion 5 requires additional consideration, as treaties are only binding between their parties.  In and of themselves, they cannot form the basis for the existence of jus cogens.  While they can serve as an important source for understanding how different States view certain and emerging norms, treaties cannot inform customary international law obligations.  The Commission must refine and clarify some of the draft principles and commentaries, he said.

AZELA GUERRERO ARUMPAC-MARTE (Philippines), on “Peremptory norms of general international law (jus cogen)”, described the adoption of the draft conclusions as a “milestone” in this field, but expressed concerns regarding some of the texts.  Several draft conclusions contemplate the evidentiary value of decisions of national courts in identifying peremptory norms of general international law.  Non-State actors, sub-State entities and individuals have petitioned Filipino courts for redress invoking international legal norms, including jus cogens in at least three instances.  National courts issued decisions in those cases that now evidence State practice, and the commentary in draft conclusion 7 could note this dynamic.  The Supreme Court of the Philippines has long anticipated the Commission’s work on jus cogens, as its jurisprudence has evolved in a manner that underscores the need for the draft conclusions to clarify the identifying criteria for, and legal consequences of, such peremptory norms.  She added that draft conclusion 9 suggests that the decisions of some State courts have more weight than others, depending on the legal reasoning applied therein.  This should be changed such that consideration of national court decisions relates to their value as evidence under draft conclusion 4.

Turning to “Protection of the environment in relation to armed conflict”, she welcomed the timely adoption of the related draft principles, along with the work of the Special Rapporteur.  Additionally, she took note of the new topics in the Commission’s programme of work, including the “settlement of international disputes to which international organizations are parties” and “subsidiary means for the determination of the rules of international law”.  She added that an examination of non-legally binding international agreements is welcome in the Commission’s long-term programme of work, as such consideration is long overdue.

NOOR NADIRA NOORDIN (Malaysia), commenting on the “Protection of the environment in relation to armed conflicts”, urged a reformulation of the draft principles to remove any binding obligations or implications.  The absence of a commitment to relevant international instruments has not hindered Malaysia’s dedication towards assisting vulnerable persons, she emphasized.  In noting the difficulty on the meaning and application of the principles of humanity and public conscience in the context of the Martens Clause, she encouraged the Commission to consider the differing views and practices of States on draft principle 12.  On terminology, she commended the consistent and appropriate use of the term “environment” as it provides a broader context of principles in line with her country’s domestic legislation.  The term “cultural” in draft principle 4 could indicate the existence of a close linkage to the “environment” in draft principles 5 and 13.  This, in turn, could relate to the rights of indigenous peoples and provide special protection for them, she pointed out.

Regarding “Other decisions and conclusions of the Comission”, she welcomed the Commission’s inclusion of the topic “Prevention and repression of piracy and armed robbery at sea”.  Maritime piracy and armed robbery at sea are pressing global issues with profound impacts on the shipping industry and the international community as a whole.  As attention is long overdue, the Commission must clarify the definition of “piracy” and the related application of universal jurisdiction.  In commending the Commission for including the topic “Subsidiary means for the determination of rules of international law”, she called for clarity on “subsidiary means” as stipulated under article 38(1)(d) of the Statute of the International Court of Justice.  A close review of the article’s drafting history could help clarify the intended role and current place of subsidiary means in determining the rules of international law, she suggested.

HELMUT TICHY (Austria) emphasized the importance of “Peremptory norms of general international law” in the context of the aggression against Ukraine.  Draft conclusion 11 on the separability of treaty provisions conflicting with a peremptory norm should feature a new formulation on the treaty’s voidness.  “Unjust” is a vague term which belongs to legal philosophy and should instead be replaced with a more specific expression.  He also expressed his preference for the non-exhaustive list of peremptory norms to refer to the prohibition of the use of force in lieu of aggression.  The former is a broader concept which comprises the threat of the use of force and would more closely align the text with the United Nations Charter.  References to the basic rules of international humanitarian law are not sufficient, he pointed out.

Associating himself with the European Union on the “Protection of the environment in relation to armed conflicts”, he welcomed the application of the draft principles to international and non-international armed conflict.  The draft principles should define the term “environment” and provide guidance on the divergent interpretations in international practice.  Turning to draft principles 4 and 18, he called for States to designate protected zones around nuclear power plants.  The present situation in Ukraine also demonstrates the need and urgency for rules concerning occupation, he stressed.  Draft principle 19 on general environmental obligations of an occupying power should include cooperation with international institutions.  Draft principle 21 on the prevention of transboundary harm must be used in the interest of the occupied territory’s population, he emphasized.

On “Other decisions and conclusions of the Commission”, he welcomed the “Settlement of international disputes to which international organizations are parties” as a topic of particular importance to Austria as a host country to international organizations.  He further welcomed the “Prevention and repression of piracy and armed robbery at sea” and “Subsidiary means for the determination of rules of international law” as topics.  While he would have preferred that the Commission study universal jurisdiction instead, subsidiary means nevertheless play an important role.  The Commission must ascertain that their exact status must be at a methodological level.  Regarding the inclusion of the topic “Non-legally binding international agreements”, he suggested reserving the word “agreement” for legally binding texts.

UMA SEKHER (India), on “Peremptory norms of general international law”, said such norms are hierarchically superior to other norms of international law and the standards used to identify them must be clear and unambiguous.  The annex to draft conclusion 23 provides a non-exhaustive and illustrative list of peremptory norms. Some of the norms on the list are not well defined in international law and their interpretation of their applicability differs from State to State.  Further, the norms themselves and the desirability of including such a list should be subject to additional discussion, she said.

Turning to “Other decisions and conclusions of the Commission”, she welcomed the Commission’s decision to include the topics “Settlement of international disputes to which international organizations are parties” and “Prevention and repression of piracy and armed robbery at sea” in its programme of work.  Regarding the latter topic, she said that future work will help address the challenges affecting the safety and security of international navigation.  She also said that recognizing the international legal framework, through the Convention, would be relevant for traditional and non-traditional security challenges in the maritime domain.  That would include piracy and armed robbery at sea.

NATALIA JIMÉNEZ ALEGRÍA (Mexico), on “Peremptory norms of general international law”, said she agreed with the definition contained in draft conclusion 3 and spotlighted the importance of having a non-exhaustive list of such norms to facilitate their identification.  The Commission’s work on this topic is directly linked to its articles on the responsibility of States for internationally wrongful acts.  The draft conclusions enable resumed discussion on the importance of identified norms.  These include the prohibition of aggression within the framework of the Security Council’s authority to maintain and restore international peace and security, particularly the legal consequences of a permanent member’s use of the veto power.  She also said she agreed with the Commission’s recommendation for this item, namely, that States should incorporate the draft conclusions into their analysis and implementation of international law.

Turning to the “Protection of the environment in relation to armed conflict”, she underlined the importance of draft principle 13, particularly its prohibition of the use of methods or means of warfare designed to cause grave, lasting damage to the environment.  This includes the use of nuclear weapons.  She recalled that her country has proposed that such use be sanctioned as an international crime pursuant to the Rome Statute of the International Criminal Court.  Draft principles 10 and 11 are also important, as they relate to the due diligence and civil liability of corporations for damage caused to the environment in zones of armed conflict.  She stressed that corporations must assume responsibility for the adverse effects of their actions.

She went on to underline the symbiotic, mutually reinforcing relationship between the Commission and the Sixth Committee and called for an end to periods of inertia and inaction in the Committee regarding the Commission’s products.  She also called for a collective, transparent review of the list of such products on the Committee’s agenda to identify which deserve to remain open for consideration and which should be concluded to free space for the inclusion of new items on the Committee’s agenda.  She also suggested that the Commission hold regular sessions in New York – without prejudice to its operations in Geneva – as this would allow closer contact with delegations and a better understanding of its working methods.

AHMED ABDELAZIZ AHMED ELGHARIB (Egypt), associating himself with the African Group, welcomed the inclusion of “Non-legally binding international agreements”, “Settlement of international disputes to which international organizations are parties” and “Prevention and repression of piracy and armed robbery at sea”.  Such topics already qualify under the Commission’s criteria for discussions on gradual codification and development, he noted.  He also commended the Commission for appointing two Africans as Special Rapporteurs and called for continued efforts to achieve a representative balance which reflects different regions and legal cultures.

On “Peremptory norms of general international law”, he said he would provide detailed comments at a later date.  As the Commission has an important role in identifying peremptory norms, its legal consequences and the relationship with other customary rules of international law and general principles of international law, Egypt would continue to follow how Member States interact with international and legal courts and how outcomes are discussed, he stressed.

Turning to “Protection of the environment in relation to armed conflicts”, he welcomed the comprehensive nature of the draft principles in addressing the before, during and after of a conflict.  The international responsibility to protect certain regions and the responsibility of an occupying power to the environment in principle 11 are not simply slogans, he emphasized.  They must be reflected on the ground through the implementation of the Geneva Conventions and the two Additional Protocols.  As the host of the upcoming twenty-seventh Conference of the Parties of the United Nations Framework Convention on Climate Change (COP27), Egypt would continue to support international efforts to promote the protection of the environment, he said.

TANIA FREIIN VON USLAR-GLEICHEN (Germany), speaking on “Peremptory norms of general international law (jus cogens)”, stressed that the adoption of an enumerative list of specific jus cogens norms might lead to wrong conclusions.  Such a list risks establishing a status quo that might impede the evolution of jus cogens.  Turning to draft conclusion 23, she raised the issue regarding the necessity and usefulness of the clause without prejudice and the emphasis put on the list not being exhaustive.  The respective commentary that the list was compiled, without using the methods laid out by the Commission in the draft conclusions, does not add any persuasive power to keeping the list in the annex.

Among other comments, she said that, on draft conclusion 2, the clarification that the characteristics of jus cogens norms outlined there are not intended as an additional criterion impacts the definition of jus cogens and includes unclear language.  She also said that the lack of State practice in support of conclusion 16 might imply a risk of abuse by unilaterally disregarding binding Security Council decisions on its basis, which could undermine the authority of the Security Council acting under Chapter VII of the Charter and potentially jeopardize the overall effectiveness of the Council’s action.  She also stressed that, especially in areas where there is a lack of practice, a more careful and thorough consideration should be given to States’ comments, as this might prove beneficial regarding the final outcome.

ANDREI POPKOV (Belarus), on “Peremptory norms of general international law (jus cogens)”, said those norms play an important, systemic role in contemporary international law, determining its core content and serving as a standard of international legality from which international relations cannot deviate.  The Vienna Convention on the Law of Treaties was the starting point for developing the draft conclusions on this topic and, given the superior position of jus cogens in the international normative hierarchy, recognition of such norms must be done through consensus.  Noting that the Commission provides a partial answer on this point through draft conclusion 7’s contemplation of a “representative majority of States”, he stressed that such majority must include those States without whose support the realization of a particular norm would not be possible.  Otherwise, such a norm would simply constitute lex ferenda.  He added that greater focus should be placed on the peremptory nature of the principles of the Charter and their exceptional significance for the international legal order.

Turning to the “Protection of the environment in relation to armed conflict”, he recalled his country’s suffering from the Chernobyl accident, from the Second World War and from other destructive conflicts.  The Commission’s draft principles on this subject encompass the entire range of relevant international legal norms, are relatively balanced and account for contemporary trends in international law.  A system for environmental protection would be incomplete, however, if it did not include provisions pertaining to the prevention of environmental harm; to criteria for lawful conduct during conflict and occupation; and to restoration of, and compensation for, such harm after the conclusion of hostilities.  He added that occupation of a State’s territory normally renders it unable to exercise its sovereign rights or fulfil its obligations to protect the environment.  Therefore, imposing obligations to protect the environment on an occupying party exercising de facto control over a territory is the only possible, justified legal means of action.  He also pointed out that the degree to which an occupying party has the authority to manage the natural resources of an occupied territory and use the same for the occupied population’s interest — and for other legitimate purposes — requires detailed, comprehensive international legal regulation.

In regards to “Other decisions and conclusions of the Commission”, he expressed support for the future inclusion of the topic of “Settlement of international disputes to which international organizations are parties”.  A comprehensive study of this topic would be of practical interest because of the expanding activities and growing number of such organizations.  Further, he noted that codifying norms on the jurisdictional immunity of international organizations would be a logical continuation of work on that topic.

GEORGE RODRIGO BANDEIRA GALINDO (Brazil), on “Peremptory norms of general international law (jus cogen)”, said the draft conclusions provide an adequate basis for the identification and legal consequences of those norms.  Regarding draft conclusion 7, he noted that peremptory norms could only be identified through their manifestation in all regional groups, main legal systems and cultures across the world.  However, silence must not be interpreted as the acceptance or recognition of the peremptory character of a certain norm, he cautioned.  The Security Council cannot be considered a legibus solutus on peremptory norms of international law.  On draft conclusion 19 on the consequences of serious violations, he voiced his rejection of unilateral sanctions and called for multilateral cooperation to focus on the peaceful settlements of disputes.  Measures adopted as a result of serious jus cogens violations must not affect the populations of the responsible States, especially their human rights.  Welcoming the list of jus cogens, he pointed out that the non-exhaustive list does not exclude other existing norms nor does it preclude their identification as cogent in the future.  The General Assembly should annex the draft conclusions in a resolution and ensure their widest dissemination.

On the “Protection of the environment in relation to armed conflicts”, he said that the draft principles concerning the international law of armed conflicts are not directly applicable to the law on the use of force.  In welcoming principles 4, 6, 8 and 13, he reaffirmed the need to apply the principles of distinction, proportionality and precautions to the environment in principle 14.  He also reiterated the prohibition of natural resources looting in principle 16.  The non-binding nature of the draft conclusions must not create new norms of international law nor change current international humanitarian law.  As such, the legally binding language preserved in several provisions reflect international obligations of binding instruments for States, he said, also adding his support for the conclusions to be annexed to a resolution.

Regarding “Other decisions and conclusions of the Commission” and the inclusion of the topic “Subsidiary means for the determination of rules of international law”, he said the Commission should enhance the clarity and predictability of international law by providing guidance on the interpretation of article 38(1)(d) of the Statute of the International Court of Justice.  In welcoming the topic “Non-legally binding international agreements” in the Commission’s programme of work, he encouraged the Commission to include “extraterritorial jurisdiction”, as well.

MARKO RAKOVEC (Slovenia), on “Peremptory norms of general international law (jus cogens)”, welcomed the additional clarification with regard to draft conclusions 5, 9 and 14, while spotlighting the need to determine the criteria to define which norms of general international law have the nature of peremptory norms.  He voiced his support for the inclusion of the non-exhaustive list of the norms, noting that this record of norms “undoubtfully qualifies for inclusion”.  Highlighting that all peremptory norms produce erga omnes obligations and reflect and protect fundamental values of the international community, he pointed out the particular consequences of serious breaches of these norms.  He further emphasized that the meaning and purpose of legal norms are only realized when they are fully operational and when subjects seek to comply with them.

Turning to the "Protection of the environment in relation to armed conflicts", he welcomed principle 8 on human displacement, which recommends that States protect the environment in areas where persons displaced by armed conflict are located and provide them with relief and assistance.  He said he strongly supported the responsibility of States for internationally wrongful acts related to the damage caused to the environment in armed conflicts and recognizes their respective obligation to compensate such damage.  Therefore, States must ensure that business enterprises exercise due diligence and protect the environment and human health in conflict areas.  In regards to the protection of environment, his country organized a number of high-level events and regional consultation between national humanitarian law committees on contemporary issues, including the protection of the environment in the whole cycle of conflict, he noted.

Regarding “Other decisions and conclusions of the Commission”, he welcomed the re-establishment of the Working Group and the recommendations provided with regard to “Non-legally binding international agreements” in the long-term programme of the Commission.  Touching upon the notion of gender parity, he underscored the important role the Commission could play to ensure this and encouraged further discussion on the matter.

MATÚŠ KOŠUTH (Slovakia), on “Peremptory norms of general international law (jus cogens)”, said that the Russian Federation’s aggression against Ukraine serves as “a bitter memento” that the fundamental values encompassed in such norms must stand firmly as pillars of the international rules-based order, and for all nations wishing to live in peace and prosperity.  The Commission’s draft conclusions on this topic constitute a useful guide for States, courts, academics and practitioners in understanding the process of identifying peremptory norms.  However, while they clarify the legal consequences stemming from such norms’ imperative nature, the extent of such consequences remains to be determined by future State practice.  He added that the non-exhaustive list of peremptory norms, as drafted, may give rise to some ambiguity, spotlighting the vague reference to “basic rules of humanitarian law” and the omission of the crime of piracy.

Turning to the “Protection of the environment in relation to armed conflicts”, he said the Commission’s draft principles on this topic provide valuable guidance to States and other actors.  Armed conflicts always have negative impacts on the environment and natural resources, and such impacts are often long-lasting and sometimes irreparable.  Further, the draft principles offer a comprehensive systemization of rules applicable in this area.  He also welcomed their cross-cutting nature, as they draw from various fields including international law, international human rights law and environmental law.

On “Other decisions and conclusions of the Commission”, he welcomed inclusion of “Settlement of international disputes to which international organizations are parties”, also taking note of the inclusion of “Subsidiary means for the determination of rules of international law” and “Non-legally binding agreements in international law” in the Commission’s long-term programme of work.

KERLI VESKI (Estonia), regarding “Peremptory norms of general international law (jus cogens)”, said she was pleased that the conclusions and the commentaries address the effect of jus cogens norms on the obligations created by the acts of international organizations, as noted in conclusion 16.  Referring to draft conclusion 8 and the list of various forms of evidence which show acceptance and recognition of jus cogens norms, she said she also agreed with the inclusion of the non-exhaustive list of jus cogens norms.  A list of identified jus cogens norms brings clarity and has practical value.  Yet, it is necessary to carry out a thorough analysis of each potential norm before including them in such a list.  It is also essential to identify jus cogens norms on the basis of a clear and strong consensus within the international community of States, she added.

Turning to the “Protection of the environment in relation to armed conflicts”, she aligned herself with the European Union and added her agreement that the principles address the protection of the environment before, during and after armed conflicts.  “It is not enough if we take precautionary measures only during armed conflicts — we need to prepare ourselves already before and deal with the negative consequences to the environment after armed conflicts,” she said.  It was vital that the language of the principles reflects each principle’s current legal nature.  She also said she was pleased that the Commission does not want to change the existing law of armed conflict, but aims to supplement it with the principles.  She welcomed that the principles are not limited to States but address the role of relevant international organizations and other actors in protecting the environment.

Regarding “Other decisions and conclusions of the Commission”, she welcomed the inclusion of new topics on the Commission’s agenda.  It was especially useful to include “Prevention and repression of piracy and armed robbery at sea” and “Subsidiary means for the determination of rules of international law”, which would be interesting for practitioners, as well as for domestic and international courts.  She also commended the Working Group’s recommendation to include “Non-legally binding international agreements” on its long-term programme of work.

MOHAMMAD AAMIR KHAN (Pakistan) said the Commission’s membership needs diversity based on equitable geographic representation.  Special rapporteurs are central to its work and there have been 62 rapporteurs in the Commission’s seven decades.  Yet, only five came from Asia and seven from Africa.  These deficiencies should be addressed.

Regarding “Peremptory norms of general international law (jus cogens)”, he concurred with the Commission’s methodology that focuses on the structural aspects of these norms and is consistent with the approach applied in the Vienna Convention on the Law of Treaties and the Commission’s work on other relevant topics.  He also said he appreciated the identification of the “right of self-determination” in the non-exhaustive list of peremptory norms of international law under draft conclusion 23.

Regarding possible conflicts between Security Council resolutions and jus cogens, he said a conflict between a Council resolution and jus cogens cannot be equated with a conflict between jus cogens and the Charter itself.  He referred to conclusion 16 and the Commission’s recognition that “a resolution, decision or other act of an international organization that would otherwise have a binding effect does not create obligations under international law if and to the extent that they conflict with a peremptory norm”.  This conclusion clearly covers Council resolutions, he said.

ALINA OROSAN (Romania), in regards to “Other decisions and conclusions of the Commission”, welcomed the inclusion of the topics “Settlement of international disputes to which international organizations are parties”, “Prevention and repression of piracy and armed robbery at sea” and “Subsidiary means for the determination of rules of international law” into its programme of work.  In addition, she said she was pleased that “Non-legally binding international agreements” was now on its long-term programme of work.

Turning to “Peremptory norms of general international law (jus cogens)”, she said the guiding conclusions are rather theoretical, but offer methodological assistance to States in determining whether a certain norm has attained jus cogens status.  This determination draws important legal consequences.  In this regard, she said she was pleased the draft conclusions try to comprehensively address all types of legal situations arising from such a determination.  She also commended the efforts of the Special Rapporteur and the Commission to ensure consistency with the provisions of the Vienna Convention on the Law of Treaties and the Commission’s previous work.  She noted the ample references being made to the draft articles on State responsibility for internationally wrongful acts.

Turning to “Protection of the environment in relation to armed conflicts”, and associating herself with the European Union, she said she firmly supported the widest possible dissemination of the draft principles on this issue.  The principles’ adoption is very timely with the environmental costs of conflicts around the world.  Pointing out that Romania is a riparian State to the Black Sea, she said there are concerns about the long-term and severe environmental damage to the Black Sea basin being created by the Russian Federation’s targeting of heavy industry and energy installations during its aggression against Ukraine.  The Commission’s effort to systematize the law in the field of environment protection in the wider context of an armed conflict – meaning from pre-conflict to post-conflict situations – largely reflects the realities of modern warfare and serves current interests of States.

MARTIN SMOLEK (Czech Republic) speaking on “Peremptory norms of general international law (jus cogens)”, said he agreed with the adopted definition and characterization as universally applicable and hierarchically superior rules of international law.  Although he commended the reformulation for clarifying its non-binding nature of the draft conclusion 21, he noted that he still had doubts on the suggested procedure’s applicability for certain aspects.  He further expressed concern over the inclusion of a list of peremptory norms in the annex.  In spotlighting the commentary to the listed rule on the prohibition of aggression, he said that the description of relevant peremptory norms might not reflect differing formulations of the norm in the Commission’s previous work.  The scope might not be entirely clear, he added.  As such, the Commission should only include the list of peremptory norms in its commentary to the draft conclusion. 

Turning to “Protection of the environment in relation to armed conflicts”, he said the extensive degradation and destruction caused by armed conflicts underscored the need to consolidate and strengthen legal frameworks.  In this regard, the draft principles contribute to contemporary international law while substantively complementing other efforts, including the International Committee of the Red Cross’s (ICRC) updated 2020 Guidelines on the Protection of the Natural Environment in Armed Conflict.  Such initiatives should lead to the better implementation of existing rules and develop new rules to enhance protection.  However, he reiterated his previous concerns over the lack of a dividing line between the accepted rules of international law and the efforts of the Commission to contribute to the progressive development of international law.  It is not also always clear which conclusions are applicable in non-international armed conflict, he pointed out.  Obligations concerning the protection of the environment must be interpreted and understood in the legal context of all other relevant rules applicable in armed conflicts, he emphasized.

On “Other decisions and conclusions of the Commission”, he welcomed the inclusion of “Settlement of international disputes to which international organizations are parties”.  As examinations should include disputes of a private law character to which international organizations are parties, the Commission and the Special Rapporteur must consolidate and clarify both theoretical and practical aspects for States and international organizations.  He further welcomed the Commission’s inclusion of “Prevention and repression of piracy and armed robbery at sea”, “Subsidiary means for the determination of rules of international law” and “Non-legally binding international instruments” as topics in its programme of work.  The Commission should also include “Universal criminal jurisdiction” in its active programme, he suggested.

LUCIA TERESA SOLANO RAMIREZ (Colombia), on “Other decisions and conclusions of the Commission”, welcomed the inclusion of “Settlement of international disputes to which international organizations are parties”, “Prevention and repression of piracy and armed robbery at sea” and “Subsidiary means for the determination of rules of international law”.  She also welcomed the inclusion of “Non-legally binding agreements in international law” in the Commission’s long-term programme of work.  Colombia has much experience in this area and will contribute when the time comes, she said.

Turning to “Peremptory norms of general international law (jus cogens)”, she said that the Commission’s draft conclusions are important for the crystallization of international law, as they help define the criteria for identifying such norms.  They also help to make this type of law more systematic by establishing consequences for the failure to comply with jus cogens.  She pointed out, however, that, while the draft conclusions provide a starting point for identifying peremptory norms, they “are not a straitjacket”.  Against that backdrop, she welcomed the inclusion of a non-exhaustive list of such norms.  She went on to point out that the Commission did not account for some of Colombia’s concerns relating to the proof of acceptance or recognition of some norms as jus cogens.  On that point, she called for clarification as to which resolutions adopted by intergovernmental organizations or conferences could serve as such proof.

On “Protection of the environment in relation to armed conflicts”, she noted that different regimes of international law could apply to this area.  While the law of armed conflict constitutes lex specialis in this area, other norms are applicable, as well.  The Commission’s draft principles contain provisions of different normative value, including some that reflect customary international law and others that contain recommendations for the progressive development of international law.  Underscoring that the draft principles do not generate new legal obligations for States, she also underlined the need to differentiate their application to international armed conflicts and those that are not international.  She also called on the Special Rapporteur to account for relevant jurisprudence and opinions of other international tribunals, especially regional ones.  The draft principles provide a good starting point for States and professionals in this area, but she emphasized that Colombia sees them as guidelines, rather than a source of new obligations.

Mr. MORA FONSECA (Cuba), in addressing “Protection of the environment in relation to armed conflicts”, underlined the impact of weapons of mass destruction on peace, international security, and the fragile environmental equilibrium of the planet as well as its sustainable development.  The Commission should study the environmental effects of weapons of mass destruction as well as the stockpiling and use of nuclear weapons.  Reparations, reconstruction and compensation must be included as part of the “regime of responsibility” for a wrongful act.  Every State has the responsibility to establish policies and standards which protect the environment before a possible armed conflict, he stressed.

Turning to “Peremptory norms of general international law (jus cogens)”, he suggested the inclusion of interpretive guidelines.  As jus cogens norms are vital for the rule of law at the international level, the Commission must consider the practices of States in the formulation of such norms, he said.