Sixth Committee Speakers Tackle Identification, Application of Peremptory Norms-Jus Cogens Concept, as International Law Commission Review Continues
Delegates Diverge on Draft Principles Addressing Protection of Environment in Armed Conflict
Delegates wrestled with the duality inherent in the concept of peremptory norms of general international law (jus cogens) ‑ which are a category of principles that, while cardinal to international law in theory, have proved elusive to identify in practice ‑ as the Sixth Committee (Legal) continued its discussion of the first cluster of topics from the International Law Commission’s report today. (For background, see Press Release GA/L/3669.)
The representative of Peru observed that peremptory norms protect and reflect the fundamental values of the international community, are universally applicable and are hierarchically superior to other norms of general international law. Efforts to identify such norms must focus on their recognition and acceptance by a broad majority of States, not by all.
Similarly, the representative of Viet Nam stressed that the recognition and acceptance of such norms by States is evidence of their status as jus cogens. He said that the representative “test” in this regard requires recognition and acceptance by States across regions, countries, legal systems and development levels.
The United Kingdom’s delegate, spotlighting negative ‑ instead of positive ‑ recognition of such norms, noted the applicability of persistent State objections to norms in determining their peremptory status. Such objections to a rule of customary international law, while that rule is in the process of formation, are relevant to concluding whether it has been recognized and accepted by the international community as having a peremptory character.
However, the representative of Cyprus said that the persistent-objector rule should not apply to peremptory norms, as jus cogens is hierarchically superior to other rules and norms of international law. He supported the draft conclusions’ definition of customary international law as the most‑common source for peremptory norms of general international law.
Taking a different stance, Armenia’s representative expressed concern over the positivist basis for identifying peremptory norms in general. It is a matter of empirical reality that the norms listed in the draft conclusions would not have been accepted as peremptory through such methodology when they emerged. It is moral law ‑ not State practice ‑ that provides the foundation for the historical recognition of such norms, he stressed.
Speakers also diverged while discussing “Protection of the environment in relation to armed conflicts”, differing on the propriety of the temporal scope and cross‑cutting nature of the Commission’s draft principles on this topic.
South Africa’s representative welcomed the draft principles’ enhanced protection of the environment during and after armed conflicts. She also stressed that States must always apply the draft principles ‑ even during times of peace ‑ as environmental impacts occur before the start of armed conflicts through the testing and disposal of weapons.
The representative of the Federated States of Micronesia also welcomed the broad temporal scope of the draft principles, which cover periods before, during and after armed conflicts. Recalling foreign powers’ conversion of his country’s land and sea into instruments of war during the Second World War, he underscored that all relevant parties ‑ including States with a history of armed conflict in the Pacific ‑ must implement the draft principles in full.
Cameroon’s representative, however, pointed out that situations occurring either before or after conflict cannot fall within the category of “armed conflict”; rather, they are governed by the existing regime of international environmental law. On that point, he suggested that the Commission eliminate overly general provisions from the draft principles, as many other international conventions already address the same.
Israel’s representative also took issue with the draft principles, noting that they conflate the rules of international humanitarian law, international human‑rights law and international environmental law in a way that alters or misrepresents the substance or scope of such rules. These legal fields are each designed for a specific purpose and, therefore, should be understood as distinguishable from one another.
Nonetheless, the representative of Spain said that one of the draft principles’ aims is to integrate norms from existing armed‑conflict law with international norms from other sectors, including human‑rights and environmental law. However, the draft texts do not always clarify whether a specific principle is mandatory in nature. This distinction is particularly important in the Spanish‑language version of the principles, and he therefore suggested that a more‑detailed study of the draft principles could identify a few isolated shortcomings and lacunae.
Also speaking were representatives of Portugal, Poland, Ireland, Sierra Leone, Switzerland, Russian Federation, Chile, Thailand, Netherlands, Republic of Korea and Morocco.
The Sixth Committee will next meet at 3 p.m. on Thursday, 27 October, to conclude its discussion of the first cluster and commence consideration of the second cluster of topics from the International Law Commission’s report on the work of its seventy‑third session.
Statements on Cluster 1
SERGIO AMARAL ALVES DE CARVALHO (Portugal), on “Other decisions and conclusions of the Commission”, welcomed the International Law Commission’s adoption on first reading of 18 draft articles and a draft annex on the immunity of State officials from foreign criminal jurisdiction, along with its decision to include “Prevention and repression of piracy and armed robbery at sea” on its programme of work. Portugal has been actively engaged on legal issues relating to piracy, advocating for a holistic, sustainable approach that focuses not only on repressing these illicit acts, but also preventing them. He also stressed that, while consensus in the Sixth Committee brings the responsibility to engage and negotiate in good faith, “it cannot be used as a veto”. Unless this issue is addressed, the contributions of the Commission and the Committee may be impaired and undermined at a time when more international law is needed to better regulate the rapidly evolving context of international relations.
Turning to “Peremptory norms of general international law (jus cogens)”, he said that the Commission’s draft conclusions can assist with the identification of jus cogens to which States must adhere, thus contributing to the predictability and stability of the international legal system. Welcoming the draft conclusions’ list of peremptory norms, he nevertheless suggested that the Commission “could have been more ambitious” in both the number and content of norms listed. A reference to peremptory environmental norms — such as the obligation to protect the environment — would have been welcomed. He voiced support for the inclusion of the phrase “and representative” in draft conclusion 7, emphasizing that the acceptance and recognition of a peremptory norm must not depend only on “a very large majority of States”. It is important that such a majority is also representative of the diversity of the world’s legal systems and cultures.
Aligning himself with the European Union on “Protection of the environment in relation to armed conflicts”, he stressed that, since the environment is a common good of humanity, it should be a common endeavour for States, international organizations, corporations and individuals to fight environmental degradation. Such entities must also cooperate to protect the environment everywhere, always — including in relation to armed conflicts regardless of their nature or duration. He added that the draft principles reflect a progressive perspective concerning the impact of armed conflict on the environment, where international humanitarian law, international human rights law, the law of the sea, international criminal law and international environmental law all apply. Absolute protection of the environment is not feasible; rather, conditional protection is necessary to guarantee a balance between military, humanitarian and environmental concerns. “We find that an acceptable balance has been achieved in this regard,” he said.
Mr. MIK (Poland), speaking on “Peremptory norms of general international law”, said that, since 2014, Poland has urged the Commission to pursue the issue of specific consequences for serious breaches of peremptory norms in light of the serious and continuing violations in Eastern Europe. More detailed standards still need to be developed, he said, expressing regret that the Commission could only reproduce without any further elaboration the appropriate provisions from its 2001 articles on the responsibility of States. The Commission missed the opportunity to explain how a State’s obligation should be implemented, among other obligations concerning conduct within international organizations. Providing weapons to a State that breaches the prohibition of aggression violates the international customary obligation described in conclusion 19, he noted, while commending the Commission’s citation of General Assembly Resolution ES11/1 of 2 March, which “deplores in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter [of the United Nations]”.
Turning to the Commission’s working methods, he encouraged the Commission to provide clearer indications of its progress on specific provisions within a particular topic. A provision or standard can go through several quasi-legislative phases that are not always clearly discernible. In that regard, the Commission should insert into the report a table which provides an overall picture or snapshot for each topic.
On “Other decisions and conclusions of the Commission”, he welcomed the inclusion of “Non-legally binding international agreements”. This topic should not be equated with the complex and broad issue of soft law, he cautioned.
DECLAN SMYTH (Ireland), speaking on “Peremptory norms of general international law”, noted the inconsistency in terminology and asked for the difference between “the international community of States as a whole” in conclusion 2 and “international community” in conclusion 3. He then expressed concern over the modification of peremptory norms. While new norms may emerge, peremptory norms by definition do not allow for a derogation from the original norm, he pointed out. On draft conclusion 5, he questioned whether treaties and general principles of law provided the basis for peremptory norms. Any treaty that does so has already codified pre-existing customary law. On draft conclusion 21, he questioned its presence and suggested its inclusion in a separate recommendations section. Regarding the annex, he commented that the non-exhaustive list was purely illustrative.
Turning to the “Protection of the environment in relation to armed conflicts”, he encouraged the Commission to review the nomenclature of its products. The draft principles in parts III and IV provide valuable assistance to States and other relevant actors in understanding the application of relevant international law in the context of environmental protection. The commentaries on draft principles 7 and 26 of parts II and V concerning outside situations of armed conflict and occupation, however, do not adequately demonstrate legal bases for those principles as binding rules. The commentary on draft principle 5 similarly does not demonstrate a legal basis for that draft principle as a rule of law, he said.
MICHAEL IMRAN KANU (Sierra Leone), associating himself with the African Group and speaking on “Peremptory norms of general international law (jus cogens)” noted that the conclusion of the Commission’s work on the matter, an accomplishment, was done under the guidance of an African jurist. He also noted, among other comments, his agreement with the decision to change the title of the topic to “Draft Conclusions on the Identification and Legal Consequences of Peremptory Norms of General International Law”, which clearly describes the scope and purpose of the draft conclusions. In addition, he reiterated his support for the illustrative list of jus cogens norms that also reflects the prohibition of the use of force and the right of self-determination of all peoples. Any exclusion of certain existent and emerging jus cogens norms from the list should not be considered prejudicial to their status, he added.
Turning to “Protection of the environment in relation to armed conflicts”, among other remarks, he spotlighted the new paragraph 2 in draft principle 13. Citing the paragraph, he said it was hard to understand why the paragraph was objected to when no reference was made to any specific weapon, or not necessarily to weapons at all. He also underlined the need to take into consideration diverse views and practices on International Law Commission topics, including the 2009 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (the Kampala Convention). He also highlighted the equitable geographical representation in the work of the Commission, noting that only one African member has served as a Special Rapporteur and a co-Chair of a Study Group. The Commission should consider a balanced approach to topics in terms of interest, and to the selection of Special Rapporteurs.
On “Other decisions”, he reminded the Commission about the outstanding topics pertaining to its long-term work programme, including “Universal Criminal Jurisdiction” and “Extraterritorial Jurisdiction”, among others. He suggested that the Commission “strive for completeness and perhaps avoid the political debate in the Sixth Committee by combining those topics and studying the wider issue of ‘Jurisdiction’”. With regard to the re-establishment of the Working Group on the Commission’s methods of work, he urged a “clear view by the Commission on the value of the nomenclature relating to the outcomes” of the Group’s work and encouraged additional consideration of other important issues mentioned in the report. Commending the progress achieved on the remote accessibility of the Commission’s plenary meetings, using live webcast and providing recorded videos online, he encouraged further progress in using such innovations.
ANDRÉS NAPURÍ PITA (Peru), speaking on “Peremptory norms of general international law (jus cogens)”, noted that they protect and reflect fundamental values of the international community, are universally applicable and hierarchically superior to other norms of general international law — as was established in draft conclusion 2. Noting growing challenges to multilateralism, he called for strengthening cooperation between the Commission and the Committee, citing the work of the Special Rapporteurs on the law of treaties. In regard to draft conclusion 7, paragraphs 1 and 2, he said that acceptance by the international community must include a broad majority of States, without requiring the acceptance or recognition of all. Highlighting draft conclusion 17, he stressed that peremptory norms generate obligations for the international community as a whole and mean all States have a legal interest in them and have the right to invoke the responsibility of any other State in the case of a violation. He further cited draft conclusion 19 in the case of grave violations.
Turning to “Protection of the environment in relation to armed conflicts”, he highlighted the finalization of the second reading, leading to the adoption of 27 principles in the area, including protection in international and non-international armed conflicts, and in situations of occupation. This is crucial, bearing in mind the gravity of global environmental problems — including climate change and loss of biodiversity — and how armed conflicts can exacerbate those problems. He made special mention of principles 2, 3, 4, 5, 8 and 9, relating to protection of the environment and designation of protected areas of indigenous and displaced persons, and further cited principles 13 and 18, mentioning zones that are culturally important. The use of technology should continue to guarantee efficiency, transparency and security. He further emphasized the importance of multilingualism, expressing gratitude that the Commission and the Secretariat work to maintain it.
Ms. RATHE (Switzerland), addressing “Peremptory norms of general international law”, underlined the draft conclusions’ usefulness while spotlighting draft conclusion 23 and the non-exhaustive list of jus cogens norms in the annex. As Switzerland has developed a broader understanding of what constitutes the nucleus of jus cogens in its practice, she noted that the list is without prejudice to the existence or subsequent emergence of other jus cogens norms. She then expressed regret over the inconsistency between the French version which mentions “les règles fondamentales du droit international humanitaire” and the English version which reads “the basic rules of international humanitarian law”. She would have preferred “fundamental” over “basic” in line with the International Court of Justice, she noted.
Speaking on the “Protection of the environment in relation to armed conflicts”, she welcomed the clarification on the temporal scope of application and commended the draft principle on protected zones as a powerful tool to protect areas of environmental importance.
On “Other decisions and conclusions of the Commission”, she commended the inclusion of “Non-legally binding international agreements” in the programme of work. Dealing with such soft law instruments from a rule of law and democracy perspective is important, she said.
ZACHARIE SERGE RAOUL NYANID (Cameroon), on “Peremptory norms of general international law (jus cogens)”, said that the Commission’s draft conclusions could become a methodological guide, allowing States and international organizations to identify the emergence of such norms and their legal consequences. He suggested, however, that their order be changed to improve understanding. He also expressed reservations regarding the presence of certain peremptory norms on the non‑exhaustive list thereof, stating that emphasis should be placed on opinio juris. This would be the best way to determine States’ willingness ‑ through constant practice ‑ to accord certain norms an erga omnes scope. He went on to support the large variety of forms of proof of acceptance of such norms in draft conclusion 8 but stressed that the desire for openness should not lead to redundancy. Also detailing his delegation’s position on other draft conclusions, he expressed regret that the same do not address controversial issues such as the interactions between State immunity, jurisdiction and State responsibility for lacunae in jus cogens.
Turning to “Protection of the environment in relation to armed conflicts”, he pointed out that armed conflict is a source of major environmental disaster, such as defoliation or damage to natural resources. He suggested that the Commission rearrange the order of the draft principles to promote better comprehension, tighten the preamble and eliminate overly general provisions, as many other international conventions already address the same. He also said that situations occurring either before or after conflict cannot fall within the category of “armed conflict”; they are governed by the existing regime of international environmental law. Further, the timing of measures to be taken pursuant to draft principle 3 should be examined, as it is doubtful that the main concern of a State facing a threat to its own security would be to legislate or take other measures as suggested in that principle. He also noted that the special relationship that indigenous peoples have with their environment is recognized and protected by existing international instruments and jurisprudence.
On “Other decisions and conclusions of the Commission”, he said that the topic the Commission calls “Non‑legally binding international agreements” would be more‑appropriately named “Concerted international acts that are non‑conventional”. It is counter‑productive to establish a rigid comparison between such acts and those agreements seeking binding obligations, as international law cannot be reduced to such obligations. The focus must instead be placed on the parties’ intentions as, notwithstanding the virtues of a written agreement, no law dictates that this must be the only form for agreements between States. What is important ‑ beyond and despite the form in which States express their will ‑ is their desire to engage in international law. Therefore, the obligatory nature of these agreements lies in the commitment, regardless of form. States’ desire to produce the effects of law must occur in a way that can be understood and proven, and words, signs and behaviours are all vehicles through which a State may transmit its will. He suggested, therefore, that this triptych be used to identify the will of States in this regard.
MINHVU NGUYEN (Viet Nam), on “Peremptory norms of general international law (jus cogens), voiced concern regarding the annex that contains the non‑exhaustive list of norms. The mandate of the Commission is to specify criteria for identification of peremptory norms and not identify them. The seven principles codified in the Charter and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States should be included in the list. Turning to draft conclusion 2, he emphasized that the nature of peremptory norms should not constitute an additional criterion for identification of peremptory norms, apart from the criteria contained in draft conclusion 4. In reference to draft conclusion 7, he noted that the qualification “as a whole” should amount to the recognition of a “very large and representative majority of States”. The representative “test” requires that acceptance and recognition of States should be across regions, countries, legal systems and development levels. While the views and practices of non‑State actors might provide context and contribute to the assessment of the acceptance and recognition, it is the acceptance and recognition of States that are relevant as key evidence of the emergence of peremptory norms, he emphasized.
Turning to “Protection of the environment in relation to armed conflicts”, he noted that Viet Nam fully understands the long‑lasting consequences of armed conflict on the environment. “The war ended in our country for decades, but its effects still remain today,” he pointed out. He reaffirmed his country’s position that States, business enterprises and other entities, which cause damage for environment in an armed conflict are responsible for making full reparation for such damage sustained through conducting post‑armed conflict environment assessment remedial measures. In this regard, he referred to removing toxic and hazardous remnant of war, clearing minefields and providing relief and assistance with the view of making full reparation for the victims of the related environmental damage.
MATHU JOYINI (South Africa), addressing “Peremptory norms of general international law”, said the description of the distinctive nature of norms in draft conclusion 2 provides a useful tool to better understand peremptory norms. Draft conclusion 5, however, should make clear that treaty provisions could only form the basis of jus cogens if they reflect customary international law. On draft conclusion 7, she noted the phrase “and representative” would strengthen the understanding of the type of majority needed to qualify for acceptance and requirement. On draft conclusion 16, she agreed that the Security Council is subject to peremptory norms. While the text should have explicitly referenced Council resolutions and decisions, the current form nevertheless provides for a broader application of the resolutions, decisions and acts of international organizations and their organs. “Serious” in draft conclusion 19 implies the existence of other or non‑serious breaches of peremptory norms, she pointed out.
Turning to the “Protection of the environment in relation to armed conflicts”, she welcomed the enhanced protection during and after armed conflicts. Draft principle 4 on the designation of protected zones should apply to all parties to armed conflicts and not just States. As environmental impacts occur before the start of armed conflicts through the training, testing and disposal of weapons, States must always apply the draft principles, even during times of peace. On draft principle 13, she expressed regret over the lack of a definition for “widespread, long-term and severe”. Additional Protocol 1 of the Geneva Conventions similarly does not provide a definition; it only offers clarity on how such concepts should be understood. She then welcomed draft principles 19, 20 and 21 concerning occupying powers. The protection of the environment for the benefit of peoples living under occupation is essential to the full realisation of their right of self‑determination, she emphasized.
Regarding “Other decisions and conclusions of the Commission”, she commended the Commission’s decision to add “Prevention and repression of piracy and armed robbery at sea”, “Subsidiary means for the determination of rules of international law”, “Settlement of international disputes to which international organizations are parties” and “Non‑legally binding international agreements” to its programme of work. Further, the inclusion of Africans is a good starting point for the equitable distribution of Special Rapporteurs. On visas, she noted that members from certain countries in the Global South experienced a more cumbersome and time‑consuming process in comparison to their Western counterparts. In addition, members from Africa, Asia and Latin America have also been issued visas of a shorter duration. The timely issuance of visas for all members, without distinction, is vital not only for members to do their work, but for the proper functioning of the Commission. Further, such issuance is consistent with the obligations of the host country under the agreement with the United Nations.
SALLY LANGRISH (United Kingdom), on “Other Decisions and conclusions of the Commission”, said the Commission could usefully suggest improvements to arrangements for the prosecution of piracy and armed robbery at sea, and the topic of settlement of disputes to which international organizations are parties.
Taking up “Peremptory norms of general international law (jus cogens)”, she urged the Commission to approach this important and complex topic with caution. The draft conclusions and annex, together with commentaries, do not in all respects reflect current law or practice. Given their potentially far‑reaching consequences, the draft conclusions must be taken forward alongside the views of States. The persistent objection of certain States ‑ particularly those specifically affected ‑ to a rule of customary international law while that rule is in the process of formation, is relevant to whether it is possible to conclude that the rule has been accepted and recognised by the international community of States as a whole as having a peremptory character. On draft conclusion 16, she noted that there is insufficient practice to support the position that a State can refuse to comply with a binding Security Council resolution on the basis that it is in breach of jus cogens norms.
On “Protection of the environment in relation to armed conflicts”, she noted that the scope of the draft principles and accompanying commentaries is very wide, touching on the law of armed conflict, international human rights law and international environmental law. The draft principles do not, and are not to be regarded as, in any way, modifying international humanitarian law, nor affecting any limitations and reservations relating to it. She welcomed the commentaries’ confirmation that, where the draft principles’ terminology does not align with international humanitarian law (for example, the use of “environment” rather than “natural environment”), this is not intended to alter its scope. She similarly welcomed the recognition in the commentaries that international humanitarian law constitutes the lex specialis in those situations to which it applies.
EVGENY A. SKACHKOV (Russian Federation), speaking on “Peremptory norms of general international law (jus cogens)”, said that the comments provided by his country were not “taken on board as they should have been”, and the final text of the draft conclusions did not undergo the changes many delegations hoped to see. On draft conclusions 7 and 14, he reiterated doubts regarding the notion of the “international community of States as a whole” and how it squares with the non-application of the persistent objector rule. In this context, the international obligation of a State cannot arise against the will of said State. In addition, the applicability of draft conclusion 16 does not reflect State practice. He also expressed regret that the Commission “did not manage to stick to its mandate”, which does not include political discussions. He also expressed discontent with the documents regarding the Russian Federation mentioned in draft conclusion 19.
Turning to the non-exhaustive list of the jus cogens norms, he said that the inclusion of the list is not advisable as it does not add any value to the draft conclusions. Moreover, the topic was not supposed to have a methodological dimension; its main purpose was to establish the procedure for identifying peremptory norms of general international law. In light of the above-mentioned policy comments, he underscored the importance of considering the comments provided by States when formulating General Assembly resolutions on this topic.
On “Protection of the environment in relation to armed conflicts”, he said that environmental issues during armed conflict are sufficiently governed by existing international law, first and foremost by international humanitarian law. Therefore, he welcomed the approach of developing general guidance texts that are not legally binding in the form of draft principles. He underscored the need for developing general principles of environmental protection only in instances of an armed conflict, not covering the pre- nor the post-conflict periods. “After all, these are considered times of peace when general norms governing environmental protection should apply,” he pointed out.
MARÍA CECILIA CACERES (Chile), speaking on “Peremptory norms of general international law (jus cogens)”, said that the draft conclusions must define the phrase “fundamental values of the international community” to distinguish a norm relating to such values from others. Regarding the criteria used to identify such norms, she emphasized that there must exist evidence of State recognition and acceptance for a norm to have peremptory status. To make this determination, the Commission should focus on quality over quantity, analysing a small number of peremptory norms in detail. She also stressed that this process must aim to identify truly universal norms and, therefore, must account for all legal systems so as not to obtain a “false generalization” based on only a few such systems. Universality is inherent to jus cogens, she underscored. She went on to suggest that the draft conclusions should contemplate the “sources” of such norms ‑ rather than their “basis” ‑ as these are distinct concepts.
SONGCHAI CHAIPATIYUT (Thailand), regarding “Peremptory norms of general international law (jus cogens), reiterated that a peremptory norm must be universally accepted and recognized across regions, legal systems and cultures, among others. The non‑exhaustive list of norms in draft conclusion 23 merely provides indicative examples of suggested peremptory norms. It could be used as a reference point to consider whether a certain norm is universally accepted and recognized, he noted. On draft conclusion 14, he underlined the Commission’s view that a rule of customary international law would not come into existence if the putative rule conflicted with jus cogens. The phrases “does not come into existence” and “would conflict with” are appropriate, he pointed out.
Turning to “Protection of the environment in relation to armed conflicts”, he said cooperation with international organizations such as the United Nations Environment Programme (UNEP), United Nations Educational, Scientific and Cultural Organization (UNESCO) and the International Committee of the Red Cross (ICRC) would help identify and address the consequences on the environment, health, livelihoods and security. It is incumbent upon mankind to be protective of the environment in both times of conflict and peace, he emphasized.
Addressing “Other decisions and conclusions of the Commission”, he stressed the importance of State practices for the “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”. He also encouraged the Commission to provide greater clarity on international law principles for international investment agreements especially on the fair and equitable treatment standard. This would provide legal certainty to practitioners, safeguard against fragmentation and play a key role in promoting sustainable economic growth. Turning to the promotion of international law knowledge, he encouraged continued voluntary contributions to the United Nations Trust Fund for the International Law Seminar. Thailand will co‑host the Regional Course in International Law for Asia‑Pacific for the eighth time, he said.
RENE LEFEBER (Netherlands), speaking on “Peremptory norms of general international law (jus cogens)”, welcomed the amendments and additions in the draft conclusions and the commentaries which were in accordance with its written comments and observations. The commentaries now recognize that treaties and general principles of law can only serve to a limited extent as a basis for jus cogens. He expressed potential support for a General Assembly resolution that takes note of the draft conclusions, without a decision to further include this topic in its agenda.
Turning to “Protection of the environment in relation to armed conflicts”, he noted the adoption, on second reading, by the Commission of the of the draft principles, reflected some of the written observations and comments submitted by his delegation, but that not all of them were incorporated. This was concerning, for example regarding principle 7 on peace operations, which he said does not reflect customary international law.
On “Other Decisions”, he welcomed the inclusion of “Settlement of international disputes to which international organizations are parties” in the Commission’s programme of work. In addition, he welcomed the inclusion of “Prevention and repression of piracy and armed robbery at sea” in the programme, along with the appointment of a Special Rapporteur, and spotlighted the focus on the extension of the scope of the topic with armed robbery at sea. As piracy at sea is already covered extensively in international, regional and national law, he saw there was no need for further guidance or clarification of the issue. This does not apply to armed robbery at sea, and it would therefore seem useful to focus on that topic and provide guidance for the development of domestic criminal law. He further called for a discussion on the implications under international law of the inability to renounce a second nationality.
RHEE ZHA HYOUNG (Republic of Korea), addressing “Peremptory norms of general international law”, said the scope of jus cogens should be extended to cover the law of treaties, State responsibility and the relationship between sources of international law and other areas of international law. The change in title to “Identification and legal consequences of peremptory norms of general international law (jus cogens)” demonstrates more clearly the establishment of jus cogens while focusing on its legal effects. He also commended the Commission for changing the title of draft conclusion 21 to better reflect potential reservations concerning procedures for judicial settlement, arbitration and conciliation of the Vienna Convention on the Law of Treaties. While some parts of the draft conclusions are still open to interpretation and too vague for implementation, he nevertheless welcomed the Commission’s recommendation to disseminate the second reading through the General Assembly.
Turning to “Protection of the environment in relation to armed conflicts”, he noted the proper consideration of comments from international organizations and civil groups. Draft principles 2, 6, 7 and 8 must be consistent in using phrases such as “to prevent, mitigate and remediate harm to the environment”, he said. Draft principles 13, 14 and 15 should retain the qualifier “natural” before environment to ensure consistency with existing international humanitarian law. By omitting “natural”, these draft principles have transformed from lex lata into lex ferenda. He then expressed his Government’s support for the final form of the Commission’s work as draft principles since some contain provisions which reflect customary international law while others have a more recommendatory nature.
Mr. SARVARIAN (Armenia), on “Peremptory norms of general international law (jus cogens)”, said that the International Law Commission should continue considering the topic with a view to improving the draft conclusions for their subsequent use in practice. Expressing concern over the positivist basis for peremptory norms expressed in draft conclusion 5, he said that the supposed basis of State consent for such norms is ahistorical. Further, the phrase “subsidiary means of interpretation” in draft conclusions 8 and 9 inverts the process by which peremptory norms have been recognized in practice, as courts ‑ not States ‑ have taken the lead in this area. These and other methodological problems are manifested in the indicative list of peremptory norms in draft conclusion 23 and ‑ as a matter of empirical reality ‑ the norms in such list would not have been accepted as peremptory through orthodox, positivist methodology at the time of their recognition. Therefore, moral law is the foundation for the historical recognition of such norms ‑ not State practice, he said.
Turning to “Protection of the environment in relation to armed conflicts”, he suggested that the Commission also continue its work on this topic to change the format of its intended output. While the draft principles provide a useful analytical resource, the text must be used as a platform to develop concrete proposals for codification. In this regard, proposals for amendments to treaties governing the law of armed conflict would be a suitable medium through which to give tangible form to the abstract draft principles. He also said that the draft principles are too broad and anodyne to be of practical use. Several principles are superfluous ‑ merely repeating certain well‑established rules of general international law ‑ and, worse, the word “appropriate” deployed in several principles with respect to preventative measures is so broad as to dilute its effectiveness. A clearer, more‑effective standard of obligation for preventative measures would be the customary rule of due diligence with respect to transboundary harm, he said.
On “Other decisions and conclusions of the Commission”, he welcomed the Commission’s addition of “Settlement of international disputes to which international organizations are parties” to its programme of work. This is an important topic in modern international practice and the Commission should include disputes of a private or tortious character in the scope of its work because such disputes are the most‑pertinent in practice. He also welcomed the addition of “Prevention and repression of piracy and armed robbery at sea” and “Subsidiary means for the determination of rules of international law”. For these three topics, the Commission should consider the production of either proposals for “hard law” or study reports, rather than draft principles or conclusions.
SANTIAGO RIPOL CARULLA (Spain), speaking on “Peremptory norms of general international law (jus cogens)”, commended the inclusion in the commentaries of the draft conclusions of a greater number of references to jurisprudence and doctrine in Spanish. Among other comments, he voiced support for the amendment made to the drafting of paragraph 7.2 to specify the level of acceptance recognition and explain the meaning of the expression “international community of States as a whole”. The new drafting includes both a quantitative and a qualitative requirement and talks of “a very large and representative majority of States”. On draft conclusion 21, States are encouraged to refer a dispute to the International Court of Justice. However, simply invoking the breach of a peremptory norm cannot represent a basis to establish the Court’s jurisdiction. Referring to the non-exhaustive list of norms, he reiterated the suggestion of not including it in the annex of the peremptory norms.
Turning to “Protection of the environment in relation to armed conflicts”, he said that one of the draft principles’ aims is to integrate existing armed conflict norms from existing armed conflict law with international law norms from other sectors, including human rights and environmental law. The commentary to the draft principles notes that the principles applicable “during” military conflicts represents lex specialis and where there is a discrepancy, it ranks above the norms of other sectors. The draft principle contains an extreme variety of norms, some of which belong to the binding norms, while others bear a recommending character, or “soft law”. However, the draft does not always make it clear whether a specific principle is mandatory in nature or rather a non-binding recommendation.
The issue, he noted, was of particular importance in the Spanish version of the principles, where the future tense had been incorrectly used to express mandatory provisions, via the present indicative to list provisions that are not binding in nature. He had suggested the use of the expression “deben” — “must”, or “deberán” — “shall” to express an obligation, and the expression “deberían” — “should” to express a recommendation without binding legal force. Reflecting these suggestions, the Commission modified the terminology used in the text of the report that contains the draft principles with its commentary. However, it did not do the same in the text without the commentary. He thus noted that a more detailed study of the draft principles could identify a few isolated shortcomings and lacunae.
JEEM LIPPWE (Federated States of Micronesia), addressing “Protection of the environment in relation to armed conflicts”, spotlighted the conversion of his country’s terrestrial and maritime spaces into instruments of war by foreign powers during World War II. He also welcomed the broad temporal scope of the draft principles in covering periods before, during and after armed conflicts. As such, he supported the obligation of States to take remedial measures for the adverse effects of armed conflicts on the lands of territories which indigenous peoples inhabit or traditionally use. Agreements concerning the presence of military forces must incorporate provisions on environmental protection. In recalling General Assembly resolution 76/300 on the human right to a clean, healthy and sustainable environment, he welcomed draft principles 26 and 27 for underscoring the obligation to remove or render harmless toxic or other hazardous remnants of war. All relevant parties ‑ including States with a history of armed conflict in the Pacific ‑ must implement the 27 draft principles in full, he emphasized.
Turning to “Other decisions and conclusions of the Commission”, he noted the inclusion of “Non‑legally binding international agreements”. The Commission should understand that the presence of non‑binding provisions does not negate the legally binding nature of the treaty as a whole. He then welcomed the Commission’s consideration of the topic, “Legal effect or nature of decisions and other acts adopted by conferences of States Parties to treaties”.
YARDEN RUBINSHTEIN (Israel), speaking on “Peremptory norms of general international law (jus cogens)”, expressed regret that the Special Rapporteur did not adequately address most of the concerns that Israel and others previously raised. The draft conclusions should strictly reflect customary international law and widely recognized principles to enhance their credibility and facilitate their broad acceptance. If the Commission wishes to engage in proposals regarding the law’s progressive development, it should be transparent when doing so. The current draft conclusions do not enjoy widespread support and will only lead to further disagreement and controversy. Detailing her country’s primary concerns, she pointed out that the Special Rapporteur relied greatly on theory and doctrine, rather than relevant State practice, which should have been the primary focus in this context. She added that, to preserve the effectiveness and acceptance of a hierarchy of norms in international law, the parameters that divide peremptory norms from others must be clearly identified. A less‑thorough approach is a recipe for politicization and confusion.
Turning to “Protection of the environment in relation to armed conflicts”, she said the Commission’s draft principles on this topic borrow from formulations found in recognized legal obligations. They also merge rules from different legal contexts and conflate the rules of international humanitarian law, international human‑rights law and international environmental law in a way that alters or misrepresents the substance or scope of such rules. These legal fields should be understood as distinguishable from one another, each designed for a specific purpose. Further, the draft principles set aside the accepted legal distinction between international and non‑international armed conflicts and, on several occasions, make assertions without sufficient substantiation. She said she viewed the draft principles as recommendatory guidelines, as they amalgamate legal obligations, suggestions for practical implementation, progressive development of the law and non‑binding standards. While the Commission is mandated to engage in the progressive development of the law, this must be based on sufficient, convincing State practice, she added.
HARIS CHRYSOSTOMOU (Cyprus), speaking on “Peremptory norms of general international law (jus cogens)”, expressed support for draft conclusion 5, which defines customary international law as the most common source for the peremptory norms of general international law. Among other comments on the draft conclusions, he emphasized that in draft conclusion 19, the principle of self-determination became a principle of international law in the course of the decolonization movement, and that it has always been applied to situations of colonial rule or foreign occupation. Thus, it meets the characteristics of norms considered a jus cogens based on draft conclusion 4. Recognizing that jus cogens norms are hierarchically superior to other rules and norms of international law, he noted that the concept of persistent objector should not apply to them. Regarding draft conclusion 23, he noted that the list of norms included in the annex is non-exhaustive and without prejudice to the existence or subsequent emergence of other peremptory norms, as also mentioned in the commentaries thereto.
On “Protection of the environment in relation to armed conflicts”, among other comments, he expressed concern over principle 7, which says that peace operations directly relate to armed conflicts; many peace operations are deployed over the course and/or following the end of hostilities and the signing of a peace agreement. Many missions operate in environments where no such political agreement exists or where efforts to establish one have failed. He further proposed additional wording for principles 10, 11 and 18, noting that the latter should also capture the importance of natural heritage, including culturally significant landscapes, geological, biological and physical formations. On principle 25, he encouraged the Commission to develop clearer guidelines to help promote and ensure the principle of relief and assistance, and encourage States to take appropriate measures aimed at repairing and compensating environmental damage caused during armed conflict. He particularly outlined the situations where the source of environmental damage is unidentified, or reparation is otherwise not available.
Mr. LASRI (Morocco), commenting on “Peremptory norms of general international law”, expressed support for the notion and principle of universality in draft conclusion 3. While peremptory norms are hierarchically superior to other rules of international law and enjoy universal application, he said he disagreed with placement of the first part of the conclusion. Turning to draft conclusion 7 (2), he said that the focus on a majority is an imprecise and random notion which moves away from the principle of unanimity; is incompatible with draft conclusion 3, 4 (b) and 7 (1); and skews the spirit of article 53 of the Vienna Convention on the Law of Treaties. Article 53 must remain the strict framework for all analyses and interpretation concerning identification criteria. On subsidiary means of determination, he also noted his disagreement with the role attributed to other expert bodies in draft conclusion 9.
Since the Commission has the authority and predetermined mandate for the progressive development of international law, the inclusion of other expert bodies raises questions of legitimacy, he continued, adding that he disagreed with categorization of Security Council resolutions as inferior to peremptory norms in draft conclusion 16. Practice has never shown a conflict between a resolution and jus cogens norms, he pointed out. In questioning the usefulness, added value, relevance, methods and criteria of the non‑exhaustive list of norms in the annex, he expressed doubts on the scope of draft conclusions 3, 7, 9 and 23. The role of the Commission is to identify new criteria; it must not establish a list on a selective basis which does not respect methodology and enjoy unanimous support, he reminded.