Sixth Committee Delegates Stress Importance of State Practice in Developing International Norms, as Law Commission Review Continues
Moving into the third and final cluster of topics from the report of the International Law Commission, Sixth Committee (Legal) delegates stressed the importance of identifying and developing norms of international law, while staying true to State practice.
Introducing the topics, Georg Nolte, the Commission’s Chair, highlighted that body’s vigorous plenary debate on “Succession of States in respect of State responsibility”. Several members had called for further examination of the traditional rule of non‑succession which the Special Rapporteur had posited, with particular attention to be given to State practice from all regions. As well, while there was support for the use of terminology from the previous work of the Commission, the definition of the term “international responsibility” had received conflicting views.
He also pointed out the change in the name of the topic “Peremptory norms of general international law” (jus cogens). Article 53 of the Vienna Convention of 1969 had been identified by the Commission as the starting point for identifying jus cogens, he said, adding that while customary international law was the basis of that principle, there were diverging opinions on the role of treaty rules. Also acknowledging the Commission’s previous attempts to come up with a list of jus cogens, he said that the Special Rapporteur was unsure about the benefits of such a list.
He also noted the appointment of a new Special Rapporteur on “Protection of the environment in relation to armed conflicts”, since the former Special Rapporteur had not sought re‑election. Underscoring the value of comments from Sixth Committee delegates, he reminded them that the Commission, as per established practice, had suspended the consideration of “Identification of customary international law” and “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” in order to give States an opportunity to review them in depth.
In the discussion that followed, several delegates noted the timeliness of studying “Succession of States in respect of State responsibility” despite the lack of State practice.
The representative of Trinidad and Tobago, speaking for the Caribbean Community (CARICOM), said that while the subject was not yet ripe and might only apply to a few States, it was far better to begin the learning curve on understanding that subject rather than to wait for some undetermined later time.
Sudan’s delegate brought to the discussion the perspective of a country affected by the “secession of a dear part of its territories”. Highlighting that situation’s effects on nationality, which was closely related to human rights and freedom, he pointed out that the topic raised many other thorny legal issues with regard to archives, treaties, memberships in international organizations and property. The Commission’s work would contribute to the progressive development of international law.
However, other delegates were more cautious, with Spain’s delegate stating: “We are not hiding our scepticism as regards the ultimate success of this undertaking”. The Commission was dealing with a topic for which there were almost no international legal provisions. The Commission’s work would, therefore, result in proposals de lege fenda, he cautioned.
Along similar lines, Austria’s representative called for the topic to be excluded from the work of the Commission. State practice was scarce, and it would have been more apt instead to speak of the topic “in cases of succession of States”.
France’s delegate also commented on State practice in relation to the draft conclusions on “Peremptory norms of general international law”, pointing out that the approach of the Commission raised questions as to the place of State practice. The terms “international community” and “international community of States in its entirety” had been used without distinction, she said, noting divisions within the Commission on the concept as well as the approach to that topic.
Countering that, Greece’s representative welcomed the Commission’s recognition of the pivotal importance of the acceptance and recognition by States of the peremptory character of a norm for it to qualify as a jus cogens norm. The exact scope of general international law was far from settled, she pointed out, proposing that the draft conclusions should contain a definition of that term.
Also during the meeting, the representative of Paraguay introduced the draft resolution on “Expulsion of aliens” while the representative of Lesotho introduced draft resolution on “Report of the Special Committee of the Charter of the United Nations and the strengthening of the role of the Organization”. In addition, the Committee concluded its consideration of the second cluster of topics from the International Law Commission’s report.
Speaking today were representatives of El Salvador, Denmark (on behalf of the Nordic Countries), Mexico, Singapore, Portugal, Peru, India, and Slovenia, as well as the International Chamber of Commerce and the Permanent Court of Arbitration. The Sixth Committee will next meet at 10 a.m. on Wednesday, 1 November, to continue its consideration of the report of the International Law Commission.
Introduction of Draft Texts
ANA ROLON (Paraguay), introducing the draft resolution, “Expulsion of aliens” (document A/C.6/72/L.13), outlined various sections of that text. The preamble, in addition to the reference to the resolution of the sixty‑ninth session, only contained technical updates. In operational paragraph 3, the topic of the expulsion of aliens in the provisional agenda had been included in order to examine the form that might be given to the articles.
SEKAMOTHO MAITSI (Lesotho), introducing the draft resolution, “Report of the Special Committee of the Charter of the United Nations and the strengthening of the role of the Organization” (document A/C.6/72/L.12), said that the current draft was built on its previous text. The draft resolution also reflected a concerted effort to include the changes recommended by the Special Committee in its latest report. The aim had been to consolidate the mandate of that Committee across a single text rather than have it spread among many. Several updates had been made, including operational paragraph 2 which scheduled the upcoming session of the Special Committee to take place over seven days between 20 and 28 February 2018.
Statements on Cluster II
HECTOR CELARIE (El Salvador), addressing the draft guidelines on “Protection of atmosphere”, endorsed the recognition of the atmosphere as essential for maintaining human life on earth. Stressing that it was a legal good of general interest to humankind, he highlighted the reference in one of the draft preamble’s paragraphs where it stipulated that the draft guidelines must not interfere with relevant political negotiations. Given the Commission’s work on issues of intergenerational importance, it was not appropriate to make a reference to that. That type of clarification could be made in the comments of the draft, he said, adding that guideline 8, which referred to international cooperation, was limited in scope.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he reiterated the need for a balanced perspective especially when determining situations where such immunity was not applicable on a ratione materiae basis. Stressing respect for the principles of sovereign equality of States and individual criminal responsibility, he said that he did not share the position of those delegations that required verification of a trend towards customary practice regarding the list of crimes in draft article 7. The work of the Commission dealt with codification but also progressive development as per its own Statutes.
HIROKO MURAKI GOTTLIEB, of the International Chamber of Commerce, commenting on “Protection of the environment”, said that open international trade had helped lift more than a billion people out of poverty, reducing inequalities across countries. As such, she welcomed the statement in the fourth report that “free trade and foreign investment are prerequisites for the welfare of humankind in the contemporary world”. She also took note of the statement that free trade and foreign investments “may come into conflict with the protection of the environment and the atmosphere”. In that regard, the business community took the challenges of climate change and its impact on ecosystems and humankind very seriously. Sustainability and trade and investment could be complementary. Therefore, the Chamber was promoting the concept of sustainable trade, where the structure of the trade took into account environmental, social and economic factors.
She went on to say that businesses thrived in jurisdictions where there were stable operating environments that supported the rule of law, with an emphasis on prohibiting arbitrary or restrictive State actions against business. While reserving its position on whether the measures to protect the atmosphere from pollution and degradation were necessary in the fields of international trade law and international investment law, she welcomed the language in draft guideline 10, which proposed that appropriate measures, if any, “shall not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade or foreign investment, respectively.”
DIRK PULKOWSKI, of the Permanent Court of Arbitration, said in regards to “Provisional application of treaties” that a series of recent Court arbitrations in the investment field had raised significant questions on that topic. The Permanent Court was providing administrative support in several proceedings under the Energy Charter Treaty, in which investors relied on protections as well as the dispute settlement mechanism established under it. Much of the extensive legal analysis in those arbitrations was now in the public domain. In the interim awards on jurisdiction and admissibility in one set of cases, a Court tribunal summarized the legal opinions prepared by dozens of leading jurists, which had been submitted in the arbitration by both sides — the claimants and respondent State.
Taking up “Protection of the atmosphere”, he said linkages were particularly evident in the relationship between international environmental law and international investment law. In the ongoing case of Bilcom v. Canada, the claimants alleged that Canada had breached its North American Free Trade Agreement (NAFTA) obligations in an environmental impact assessment. In its award, the tribunal recognized public concern that investment treaties might hinder the maintenance and implementation of high standards of environmental protection. It established that investment law must give appropriate space and effect to environmental considerations.
Regarding “General principle of law”, he said his Court’s administered tribunals had applied general principles of law in various contexts, including the principles of good faith, abuse of rights, nemo auditor propiam turpitudinem allegans, pacta sunt servanda and estoppel. In the case of Venezuela US, S.R.L. (Barbados) v. The Bolivarian Republic of Venezuela, faced with the issues of determining jurisdiction, the tribunal stated in its interim award that “this tribunal has no other choice than to apply and enforce the (disputed treaty) provisions in accordance with their terms pursuant to the principle of pacta sunt servanda.”
On “Evidence before international courts and tribunals”, he said that the applicable international rules of procedure described the framework of evidence‑taking at a high degree of abstraction, giving wide discretion to the arbitral tribunal. It should not be overlooked, however, that tribunals usually adopted detailed procedural orders in consultation with disputing parties, in which precise modalities of evidence‑taking were laid down for a particular case. Those modalities might concern, inter alia, the production of requested documents, preparation for witness/expert statement, and site visits. The Commission should expand its enquiry to such procedural orders and to the practice of courts and tribunals pursuant to them.
Turning next to the work of the United Nations Commission on International Trade Law (UNCITRAL) with respect to investor‑State dispute settlement reform, he said the Permanent Court’s experience suggested that “permanence” and “institutionalization” of courts and tribunals were matters of degree, falling within a spectrum of possibilities. The Court took no view as to the desirability of particular reforms in that area, as it was the prerogative of Governments to select the dispute settlement mechanism that they regarded as most appropriate, taking account of their policy preferences and interests. To the extent that States wished to consider new approaches to the present system of investment arbitration, the Court stood ready to support any such initiatives at the technical level, including by assisting States in designing and implementing efficient and fair mechanisms for resolution of disputes with foreign investors.
CONCEPCIÓN ESCOBAR HERNÁNDEZ, Special Rapporteur on “Immunity of State officials from foreign criminal jurisdiction”, thanked the Sixth Committee delegates for their responses to the draft guidelines. Their observations and recommendations would be taken into account, she said, assuring them that she had taken very good note of everything said in the meeting.
Introduction to International Law Commission Report Cluster III
GEORG NOLTE, Chair of the International Law Commission (ILC), introduced the third cluster of topics, giving an overview of work done on “Peremptory norms of general international law” (jus cogens), “Succession of States in respect of State responsibility”, and “Protection of the environment in relation to armed conflicts”.
Addressing the first of those, he noted that the Special Rapporteur on “Peremptory norms of general international law” (jus cogens) had proposed modifying the name of the topic, leading the Commission to adopt a new title. Following the plenary debate, draft conclusions 4 through 9 had been forwarded to the Drafting Committee. Commission members had taken article 53 of the Vienna Convention of 1969 as the starting point for identifying jus cogens. While customary international law was the basis of that, there were diverging opinions on the role of treaty rules. Regarding previous attempts by the Commission to come up with a list of jus cogens, he said that the Special Rapporteur was unsure about the benefits of such a list.
Turning to “Succession of States in respect of State responsibility”, he said that during the plenary debate on that Special Rapporteur’s first report, several members had said that the traditional rule of non‑succession which the Special Rapporteur had posited needed further examination, with particular attention to be given to State practice from all regions. Members welcomed the proposed text of draft article 1, with several members proposing to amend the scope for greater clarity and focus, as opposed to a general examination of State responsibility. There was also support for the use of terminology from the previous work of the Commission. However, the definition of the term “international responsibility” received conflicting views, he noted.
Regarding “Protection of the environment in relation to armed conflicts”, he said that the Special Rapporteur on that topic had not sought re‑election and was no longer with the Commission. The Commission had decided to establish a Working Group on the topic which noted the continuing interest of States and other bodies, as well as the substantial work already done and the need for its completion. A new Special Rapporteur, Marja Lehto was also appointed by the Commission.
Reminding delegates that the topics “Identification of customary international law” and “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” had not been not debated in the current year, he added that the full sets of draft conclusions on those two topics had been adopted on first reading last year. It was the Commission’s established practice to suspend the consideration of topics after the first reading to give States an opportunity to carefully review the outcome and to give in‑depth comments for the second reading. The Commission greatly valued delegates’ comments, he said, underscoring that they were a very important part of its work.
LIZANNE ACHING (Trinidad and Tobago), speaking for the Caribbean Community (CARICOM), addressed “Protection of the environment in relation to armed conflict”, spotlighting a legal vacuum. International legal provisions protecting the environment during armed conflict had been designed for international armed conflicts. Those provisions did not necessarily apply to internal conflicts, particularly given that most present‑day armed conflicts were non‑international, or civil wars. She welcomed the work by the Working Group to draft the principles to armed conflicts of a non‑international character and echoed the call by the Working Group to maintain momentum on the work for the protection of the environment in armed conflict.
On “Crimes against humanity”, she welcomed article 6, which called for States to take the necessary measures to ensure that such crimes constituted offences under criminal law. She underscored the importance of States establishing jurisdiction under national law, which would be instrumental in the fight against impunity as well as ensuring those accused of committing such grave crimes were brought to justice. She also supported the obligation for States to take necessary measures to ensure that the official position of alleged perpetrators did not exempt them from liability for crimes against humanity.
Turning to “Succession of States in respect of State responsibility”, she said that, while it was arguable that the subject was not yet ripe and might only apply to a few States, it was far better to being the learning curve on understanding and addressing that subject rather than to wait for some undetermined later time. Voicing support for the Special Rapporteur’s proposed future work programme, she encouraged the Commission to further explore the legal complexities of State succession in respect of State responsibility, including further discussion of whether obligations arising from wrongful acts were “debts” subject to the 1983 Vienna Convention.
Turning to “Peremptory norms of general international law”, she said that she supported the changing of the topic name to remain consistent with article 53 of the 1969 Vienna Convention. The use of article 53 was a good starting point for the identification of criteria and encouraged the Commission’s continued examination and exploration of other aspects, should the need arise to supplement or grow beyond the Convention.
RASMUJ JARAK NEXO JENSEN (Denmark), also speaking for the Nordic countries (Finland, Iceland, Norway and Sweden,), addressed the topic of “Peremptory norms of general international law” (jus cogens), stating that he fully supported the continued work by the Special Rapporteur, the International Law Commission, and the Drafting Committee, and looked forward to future discussions on the draft conclusions after the adoption of a full set of conclusions by the Drafting Committee. The topic was best dealt with by the Commission through a conceptual and analytical approach rather than with a view to elaborating a new normative framework for States.
Turning to “Succession of States in respect of State responsibility,” he said that the question of succession with regard to rights and obligations arising from internationally wrongful acts was a controversial one. The question of State responsibility had been left out of the Commission’s earlier work on State succession. As well, the issue had not been included in the articles on State responsibility adopted by the Commission in 2001. Doctrinal writings used to pay little attention to that topic and, if they did, they generally concluded that there was no succession to State responsibility. That should of course not make the Commission shy away from a topic where codification and progressive development could potentially bring clarity and predictability.
On “Protection of the environment in relation to armed conflicts”, he observed that the Commission had managed to facilitate the transition of the topic from one Special Rapporteur to another by establishing a Working Group, which deemed that substantial work had already been done and needed to be finalized without delay. In that context, he noted with satisfaction the plan of work for the remainder of the quinquennium that would lead to a first reading in 2019 and the completion of the draft principles on second reading in 2021.
NADIA ALEXANDRA KALB (Austria), on “Peremptory norms of general international law”, said the issue of jus cogens was of central importance and she did not see a need to change the title of the topic. Jus cogens was a well‑established concept that did not need further precision. She noted that the Commission’s report only reproduced, in a footnote, draft conclusions 4 through 9 as proposed by the Special Rapporteur, and that it did not contain draft conclusions 1 to 7 provisionally adopted by the Drafting Committee. She reiterated that an illustrative list of jus cogens norms would be one of the crucial benefits of the Commission’s work on the topic.
Turning to the topic of “Succession of States in respect of State responsibility”, she reiterated his position to exclude it from the work of the Commission. State practice was scarce, and it would have been more apt instead to speak of the topic “in cases of succession of States”.
On the “Protection of the environment in relation to armed conflicts”, she said the main challenge at the moment was not the establishment of new rules and standards, but the improvement of compliance with its existing rules. For that reason, she supported the topic, she said.
MARIA TELALIAN (Greece), turning to “Peremptory norms of general international law” commending the pragmatic approach to the subject, welcomed the pivotal importance recognized by the Commission for the acceptance and recognition by States of the peremptory character of a norm for it to qualify as a jus cogens norm. The draft conclusions should contain a definition of the notion of general international law as its exact scope was far from settled especially, its relationship to customary international law. Noting certain contradictions between draft conclusions 5 and 6, she called for clarification on the qualifier “general”.
Turning to “Succession of States in respect of State responsibility”, she noted the lack of sufficient State practice which had led to legal gaps, requiring the progressive development of law by the Commission. Expressing confidence that the Commission’s work would provide international lawyers normative guidance in dealing with that complex issue, she said her delegation would be sending additional remarks later.
JOSÉ MARTÍN Y PÉREZ DE NANCLARES (Spain), addressing “Peremptory norms of general international law”, said it was essential to preserve the open and flexible nature of the process of creating jus cogens norms. Furthermore, producing a list of such norms could call that objective into question. Regarding draft conclusion 1, he said it should be clarified that the reference to general international law did not exclude the existence of jus cogens norms in specific fields. Discussing several other parts of the text, he said, with regard to draft conclusion 5, that references to treaties in paragraph 2 should be accompanied by an explanation in the future commentary.
Turning to “Succession of States in respect of State responsibility”, he noted that the Committee was dealing with a topic for which there were almost no international legal provisions. The Commission’s work would, therefore, result in proposals de lege fenda, he said, adding that “we are not hiding our skepticism as regards the ultimate success of this undertaking”. With regards to draft article 3, paragraphs 1 and 2 could be rewritten and simplified. With regards to draft article 4, there was no efficacious relationship between paragraphs 2, which enshrined the concept of a successor State assuming the obligations of a predecessor State arising from an internationally wrongful act, and paragraph 3, which generally cited provisions of international law which applied to unilateral acts by States.
On “Protection of the environment in relation to armed conflicts”, he said he applauded the Commission’s decision to continue working on that topic.
PABLO ADRÍAN ARROCHA OLABUENAGA (Mexico), commending the progress made on “Peremptory norms of general international law”, said that, while the draft conclusions were a useful basis for debate, they required simplification in order to avoid repetition. Stressing the importance of ensuring that the drafts did not deviate from the standards in article 53 of the Vienna Convention, which set out the basic elements of jus cogens, he recalled that in 1995, Mexico had submitted written observations to the International Court of Justice with a view to requesting an advisory opinion on the legality of the threat or use of nuclear weapons. The observations contained his Government’s opinion on the jus cogens nature of the norms applicable to armed conflict.
Turning to “Succession of States in respect of State responsibility”, he highlighted the approach proposed by the Special Rapporteur in which the obligations and rights of the predecessor State, stemming from an internationally wrongful act, did not become the obligations or rights for the successor State towards the aggrieved State. Regarding draft article 4, he said there was no existence of transmission of rights merely because the successor State had made a unilateral declaration to that effect. Noting the detailed analysis by the Special Rapporteur, he said that draft article 4 should be revised so as to encompass all necessary requirements to ensure that a unilateral declaration made by a State should be considered binding.
On “Protection of the environment in relation to armed conflicts”, he thanked the former Special Rapporteur and welcomed the new Rapporteur.
SHERAZ GASRI (France) said of the topic “Peremptory norms of general international law” that she had doubts on its timeliness given the uncertainties around the very notion. There were divisions within the Commission on the concept behind the topic, as well as whether a naturalistic or positivist approach should be taken. Those divisions reflected opposing approaches of States, and different viewpoints could be seen in the draft conclusions. Some seem to have been retained due to a lack of an alternative only.
Turning to draft conclusion 3 on the definition of jus cogens, she said it had been the subject of criticism. She reiterated her doubts on the references to “fundamental values”, which raised more questions than it resolved. The approach that was adopted by the Commission raised questions as to the place of State practice. From the point of view of terminology, “international community” and “international community of States in its entirety” had been used without distinction. To make the document legally clear, it would be desirable to use the latter. On establishing an illustrative list, she said that now was not the time for such an exercise, given the current disagreements on the topic.
ELSADIG ALI SAYED AHMED (Sudan), on “Succession of States in respect of State responsibility”, said that the Commission should duly consider all the viewpoints expressed during its previous plenary. Reiterating that the inclusion of the topic in the long‑term programme of the Commission was timely, he said that the study would eventually contribute to the progressive development of international law, notwithstanding the potential difficulties in the efforts to specify the rules and principles of succession of States.
Underscoring the many different types of succession, he also said that the issue raised thorny legal issues, with regard to archives, treaties, memberships in international organizations and property. There were few customary norms because of the diversity of cases and circumstances under which succession arose. Sudan was one of the countries affected by the “secession of a dear part of its territories”, he said, noting that situation’s effects on nationality — a subject of crucial importance given that it was closely related to human rights and freedom.
SERAPHINA FONG (Singapore), addressing “Peremptory norms of general international law”, said that she welcomed draft conclusion 4 on the criteria for identifying jus cogens. It should be consistent with article 53 of the Vienna Convention on the Law of Treaties. It was imperative that virtually all States recognized a norm as having a jus cogens character before being identified as such, she said, adding her appreciation for the Special Rapporteur’s clarification that the elements of paragraph 2 in draft conclusion 3 were not criteria for jus cogens but rather descriptive elements of jus cogens norms. The practical effect of the difference between descriptive elements and criteria might not clear in practice. On the matter of a possible illustrative list, she said that the determination of the methodology in compiling such a list, if at all, was crucial.
Turning to “Succession of States in respect of State responsibility”, she said that she looked forward to the concise final product on that subject.
Addressing the matter, “Protection of the environment in relation to armed conflicts”, she expressed her appreciation to the previous Special Rapporteur and welcomed the decision of the Commission to appoint a new Special Rapporteur.
CRISTINA MARIA CERQUEIRA PUCARINHO (Portugal), addressing “Peremptory norms of general international law”, commended the second report which provided criteria for the identification of a norm of jus cogens and presented constructive proposals. She voiced her continued support for the debate on jus cogens and expressed appreciation that the Commission approached the topic with caution and pragmatism. The core values of jus cogens could be recognized in several forms of States’ and international organizations’ practice, as well as in jurisprudence of international courts and tribunals. Noting that jus cogens was evident in agreed‑upon minimal common legal standards, she said jus cogens could be drawn from all sources of international law, not only from treaty law. An illustrative list could impair the development of jus cogens. Thus, the focus of the Commission should be on identifying criteria and bringing about substantial theoretical developments.
She welcomed the inclusion of “Succession of States in matters of State Responsibility” in the programme of the Commission and highlighted the intersection of succession of States and international responsibility. Any conclusion on the effect of the succession of States in State responsibility could only be reached after a comprehensive analysis on the law and practice of the succession of States. Further research of case law and State practice was needed. To that end, the Commission should examine such practice without the predetermined goal of assessing the existence of general rules or principles regarding State responsibility. It would be premature to decide on the final form of the project while the substantive part of the topic was not fully explored.
On “Protection of the environment in relation to armed conflict”, she expressed confidence that under the guidance of the new Special Rapporteur, the Commission would give continuity to work and that a final outcome on that topic would have a positive impact on the protection of human beings and the environment by limiting the effects of armed conflicts.
GUSTAVO MEZA-CUADRA (Peru), on “Peremptory norms of general international law”, said that he agreed that it was relevant and appropriate to change that topic title from jus cogens. He welcomed the Special Rapporteur’s view that jus cogens norms should protect the basic values of the international community and be hierarchically superior to other norms. On the possibility of an illustrative list, it was important to draw up a methodology to find jus cogens norms. In the event of an illustrative list being developed, it should simply contain some examples for reference, and avoid giving the impression of being an exhaustive list. As a future topic for discussion, he said he was interested in the view of the Special Rapporteur on universal application and regional jus cogens; at present it was not possible to speak of regional jus cogens.
On the “Protection of the environment in relation to armed conflicts”, he supported the decision to appoint a new Special Rapporteur.
HARI BANSH NARAYAN SINGH (India), on “Peremptory norms of general international law” (jus cogens) noted that his delegation would be in position to comment on draft conclusions 4 and 9 relating to the criteria for jus cogens following the conclusion of all drafting formalities and the subsequent debate in the Commission’s plenary.
With regards to “Succession of State in respect of State responsibility” in its earlier work, he recalled that the principle of “responsibility” which would hold a State or an organization responsible for the commission of an internally wrongful act had not been favoured as part of succession in earlier attempts. He expressed support for an approach examining the question of whether there were rules of international law governing both the transfer of obligations and the transfer of rights arising from international responsibility of States for internationally wrongful acts.
While that topic was complex and sensitive, he said India nevertheless supported the Commission’s continuing work, and called for more time and an in-depth study in that regard. In addition, the Special Rapporteur’s second report should address the issues of transfer of the obligations arising from the internationally wrongful acts of the predecessor State while also distinguishing cases where the original State had disappeared — namely, in cases of dissolution and unification — and cases where the predecessor State remained, as in situations of territorial transfer, secession and newly independent States.
BORUT MAHNIČ (Slovenia), concerning “Peremptory norms of general international law” (jus cogens), voiced his agreement that the approach taken on the criteria for jus cogens could not be based entirely on consent. He welcomed consideration of the characteristics set out in draft conclusion 3, paragraph 2, in the context of identifying jus cogens. A more detailed enunciation of the word “attitude” in relation to the identification of jus cogens was needed, as well as additional consideration concerning resolutions adopted by international organizations. An illustrative list of norms that had acquired the status of jus cogens would be useful in the context of work on the topic.
Turning to “Succession of States in respect to State responsibility,” he said that cases of State succession were rare and modern approaches differed substantially from early cases. Additional in-depth research of State practice, including State practice in non-European regions, was therefore needed. He welcomed the Special Rapporteur’s intention to pay additional attention to the issue of the plurality of responsible States and the issue of shared responsibility, adding that that should also be done, mutatis mutandis, for the plurality of injured States. In the case of succession agreements, the provisions of some federal Constitutions should be examined, including the Constitutional Charter of the State Union of Serbia and Montenegro, which could be relevant in terms of analysing the right of federal units to secede and determining the consequences of secession.
Regarding “Protection of the environment in relation to armed conflicts”, he drew attention to a recent report by the Global High-Level Panel on Water and Peace under the leadership of the former President of Slovenia, Danilo Türk. The report recommended, among other things, encouraging water supply ceasefires during armed conflicts and deploying military water specialists in peace operations to rebuild water supply systems. It also called for strengthening global institutional and legal frameworks and establishing an independent body that would collect information about damaged water supplies and foster technical assistance during protected armed conflicts, among others. The Special Rapporteur and the Commission should carefully study the report.