Third Cluster of Topics Tackles Complex, Sensitive Issues, as Sixth Committee Continues Reviewing International Law Commission Report
Deliberations on Second Cluster of Topics Concluded
Speakers pointed to the legally complex and politically sensitive nature of the work of the International Law Commission (ILC) during its sixty‑eighth session, as the Sixth Committee (Legal) continued its review of the Commission’s annual report.
Introducing the third cluster of topics, Pedro Comissário Afonso, Chairperson of the Commission, provided an overview of the key work done on “Provisional application of treaties”, “Immunity of State officials from foreign criminal jurisdiction”, and “Protection of the environment in relation to armed conflicts”.
The Commission’s debate on “Provisional application of treaties” had focused on methodology, reflecting the underlying question of whether the legal effects of provisional application were the same as those after the entry into force of the treaty, he said. The report also continued the analysis of the relationship of provisional application to other provisions of the 1969 Vienna Convention on the Law of Treaties and of the practice of international organizations with regard to provisional application.
In regards to “Immunity of State officials from foreign criminal jurisdiction,” he called attention to the Special Rapporteur’s analysis on the questions of limitation and exceptions. While it had not been possible to determine the existence of a customary rule that allowed for the application of limitations or exceptions in respect of immunity ratione personae, limitations and exceptions to the immunity of State officials from foreign criminal jurisdiction did apply to State officials in the context of immunity ratione materiae. Given the complexity of the topic, the Commission would continue to consider it carefully.
Noting that the Commission had provisionally adopted eight draft principles on “Protection of the environment in relation to armed conflicts”, he highlighted draft principle 9 on general protection of the natural environment during armed conflict, which addressed the obligation to protect and respect the natural environment, the duty of care and the prohibition of attacks against any part of the environment, unless it had become a military objective.
In the debate that followed, delegates raised several concerns that illuminated the nuances of all three topics. The representative of Austria asked if, in regards to “Immunity of State officials from foreign criminal jurisdiction”, the private acts of a State, such as the purchase of prohibited war material, would fall under the immunity addressed in the draft articles. While he accepted the idea of restricting immunity in certain criminal proceedings, he pointed out that such restrictions could be abused for political or fraudulent purposes. Restrictions of immunity should be combined with an international mechanism aimed at preventing such abuse.
The representative of the Russian Federation also noted that the topic had become more politically charged in the current atmosphere. The goal of putting an end to impunity should not become an instrument to manipulate international norms of law. Immunity did not preclude accountability and was not the same as impunity.
Other delegates, however, stressed the importance of addressing impunity, with the representative of El Salvador expressing support for the work of the Commission in identifying those crimes where immunity would not apply. He also added that he did not share the view of some Commission members in requiring prior customary rule for identifying exceptions and limitations; the work of the Commission should not be limited to codification. Furthermore, absence of general practice in the area was an example of prevailing immunity of serious international crimes.
“We simply do not see any rational need to uphold immunity for State officials in foreign jurisdictions in connection with such crimes,” said Norway’s delegate, also speaking for the Nordic countries (Denmark, Finland, Iceland and Sweden). For crimes, such as genocide, crimes against humanity and war crimes, no rules of immunity should apply in national jurisdictions.
The representative of Australia reminded the Committee during the discussion on “Provisional application of treaties” that there were a number of reasons why States might want treaty obligations to apply prior to entry into force. Formal treaty action in domestic systems could take time and provisional application might be necessary to respond to an international crisis or to ensure the smooth transition of successive treaty regimes. The Commission’s guidelines could provide States with significant useful guidance without impinging on the relevant domestic and constitutional requirements of States.
Taking up the Commission’s work on “Protection of the environment in relation to armed conflicts”, several speakers highlighted the breadth of the matter, including the impact on indigenous peoples during such conflict.
While underlining the impossibility of drawing clear limits between the three phases of conflict, the representative of Spain also called for greater attention and study to be paid to issues of occupation, the practice of non‑State actors, the indigenous peoples, and the question of responsibility or the applicability of the precautionary principle,
Romania’s delegate said he could not stress enough the importance of the Commission’s consideration on the topic. Indigenous peoples were dependent on the environment of the territories they inhabited. The Commission might want to consider a more general statement aimed at the protection of people who had a close connection to the environment.
Welcoming the draft principles dealing with the rights of indigenous peoples, the representative of Micronesia also underscored that terrestrial and maritime areas and resources were closely linked with those peoples’ cultural practices, socio‑political rankings, traditional identities, and basic sustenance. Protecting those natural environments was equivalent to protecting the indigenous communities that depended on those environments.
He also pointed to his country’s history as a victim of war during major armed conflicts waged by foreign powers, noting that in the former headquarters of the Japanese naval fleet, there still remained over 60 military wrecks in an area only 40 miles wide. That included areas where oil was leaking into the water, causing hazard to the marine system and the local population. The draft principles would go a long way in ensuring that the environments of States like Micronesia were not damaged “for all eternity” by foreign powers.
The Committee also concluded its consideration of the second cluster of topics from the Commission’s report, during which it heard from the Special Rapporteurs on “Protection of the atmosphere” and “Jus cogens.”
Speaking today were representatives of Sri Lanka, Canada, Ireland, Japan, Indonesia, India, Czech Republic, Singapore, Sudan, Lebanon, United Kingdom, Portugal, and Croatia, as well as the European Union and International Committee of the Red Cross (ICRC).
The Sixth Committee will next meet at 10 a.m. on Wednesday, 02 November, to continue consideration of the report of the International Law Commission.
Statements on Cluster II
SONALI SAMARASINGHE (Sri Lanka), speaking on “Protection of the atmosphere”, said the topic was extremely complex and important. The Paris Agreement on Climate Change enhanced the efforts of the International Law Commission (ILC) in elaborating a comprehensive set of guidelines. Interactions with the scientific community would increase ILC members’ familiarity with the relevant concepts and encourage broader dialogue. She also took note of divergent views on the nature of the obligation in draft guideline 3, especially as to whether it should be considered as an “obligation erga omnes”. On draft guideline 7, geo‑engineering was now widely practiced and had great potential, but needed to be approached with thoughtfulness and prudence as well. As well she said she hoped that the fourth preambular paragraph on the special needs and situation of developing countries would be considerably strengthened and would reference common but differentiated responsibilities, as did the Paris Agreement.
CATHERINE BOUCHER (Canada), on “Jus cogens”, noted the instrumental role of the Commission in the development, acceptance and mainstreaming of the principle in international law. However, it was very important for any definition of that concept to be in line with the 1969 Vienna Convention on the Law of Treaties. That being said, it would be beneficial for the Commission to extend the idea of the acceptance and recognition of a peremptory norm by States to also include other entities, such as international and non-governmental organizations, and the international society more broadly. Stressing that while she saw benefit in analysing the concept of regional jus cogens, she added that it was crucial to distinguish that exercise from that of universal jus cogens norms.
Turning to “Protection of the atmosphere,” she said that it would be helpful to clarify how the 2013 understanding would be applied to the Commission’s future work on the topic. Some of the provisions, such as those on scope and objectives, raised questions.
ANNE-MARIE O’SULLIVAN (Ireland), with regards to “Crimes against humanity”, said that where draft articles dealt with the liability of natural persons for such crimes, they should not deviate from the provisions of the Rome Statute. The decision and recommendations of the Commission to address the liability of legal persons for crimes against humanity moved away from the approach taken by drafters of the Rome Statute, who noted the deep divergence of views on inclusion of criminal responsibility of legal persons in the Statute and did not include such a provision. Criminal responsibility for corporations was not uniformly recognized worldwide and the approach adopted in jurisdictions where it was recognized could diverge significantly.
Turning to “Jus cogens”, she said attempting to provide an illustrative list of norms could change its nature and blur its fundamentally process‑oriented nature by shifting the focus towards the status of particular primary rules. She said she favoured an approach focusing on how jus cogens rules were identified and what their legal consequences would be. However, work on that topic should provide examples of jus cogens norms for guidance about their nature, requirements for their elevated status and consequences.
She went on to say that she saw little added benefit of an annex for examples of jus cogens, as it might risk disadvantages associated with a list of norms. The Vienna Convention should be central to work on jus cogens; it was important to remain faithful to those provisions. She encouraged an in‑depth study of the travaux préparatoires of the Convention’s relevant provisions. In particular, additional requirements for recognizing jus cogens should not be inadvertently created. Regarding future work, she said criteria for elevation and the way of determining whether a jus cogens norm was “accepted and recognized” as such “by the international community of States as a whole” were critical aspects of that topic.
JANE J. CHIGIYAL (Micronesia), focusing on “Protection of the atmosphere”, noted that in draft guideline 3 on the obligation of States the Commission had held interactive dialogues with scientists. Of the proposal to differentiate between two dimensions of the protection of the atmosphere —— transboundary atmospheric pollution and global atmospheric degradation —— she said that there was no practical distinction to be made. In addition, significant measures had been taken by the international community to protect the atmosphere, from the adoptions of the Paris Agreement and the Kigali Amendment to the Montreal Protocol, a legally binding agreement to phase down the consumption and production of hydrofluorocarbons.
She went on to say that Micronesia had committed to taking steps to revamp its energy sector to rely less on fossil fuel consumption, even though its greenhouse gas emissions were minimal compared to developed countries and certain developing countries. On the upcoming work of the Commission, she voiced her support for the suggestion to deal with the interrelationship of the law of the atmosphere with other fields of international law, particularly the law of the sea and international human rights law.
YUKI HIROTANI (Japan) said he welcomed the Commission’s efforts to develop a concrete set of norms on “Crimes against humanity”. The fight against impunity required coordinated action by the international community.
Turning to “Protection of the atmosphere,” he said that draft guideline 3 was one of the most important outcomes of the current session. Input from scientists was greatly appreciated on scientific subjects, including draft guideline 7. It was good practice to consult such experts when dealing with those topics.
On “Jus cogens,” he said that he valued the practical approach adopted by the Special Rapporteur, which enabled a concentration on analysis of practical aspects. On whether the Commission should develop an illustrative list, he said he was aware of the difficulty of that and hoped it would be addressed in future sessions.
FERRY ADAMHAR (Indonesia), speaking on “Crimes against humanity”, said that under his country’s legal system, nine out of the eleven proposed crimes against humanity had been criminalized. There were also legal frameworks for the protection of witnesses and the National Commission on Human Rights was equipped with investigative powers. His Government would further study the draft articles and develop its views on them. In the light of the legal intricacies of the topic, he encouraged the Commission to continue to give the topic careful consideration.
Turning to “Protection of atmosphere”, he commended the adoption of the preambular paragraph and the provisions, stressing that his country attached great importance to the topic. Indonesia had just deposited its instrument of ratification of the Paris Agreement. With that legal framework in place, his country would now consider how best to fulfil its obligations to protect not only the atmosphere, but the environment in general. The obligation to protect entailed the obligation to prevent harm and carry out enforcement measures, he reminded the Committee.
On “Jus cogens”, he thanked the Special Rapporteur and said that Indonesia was developing its views and would communicate those views at a later date.
KOTESWARA RAO MADIMI (India) said that the Special Rapporteur’s second report on “Crimes against humanity” addressed various actions to be taken by States, including the establishment and exercise of laws and national jurisdiction, investigation to identify offenders, and fair treatment.
On “Protection of the atmosphere”, he expressed appreciation for the dialogue between the Commission and scientists, noting that the preambular paragraphs must bring out the historic responsibility of developed countries which had polluted the atmosphere. The principles of common concern, environmental impact assessment, due diligence obligations, equity and sustainable use of atmosphere were regulated by a number of environmental law treaties and general international law. One of the major challenges lay in combatting climate change, he said, emphasizing the need for meting out climate justice. Such an effort called for a concerted effort to save the planet earth for future generations.
Turning to the topic “Jus cogens”, he noted that articles 53 and 64 of the Vienne Convention provided the legal basis for acceptance and recognition of a norm. In fact, norms of the principle were hierarchically superior to other norms of international law and were universally acceptable. The peremptory norms required further elaboration with sufficient study as there were conflicting views within the Commission.
STEPHANE OJEDA, representative for the International Committee of the Red Cross (ICRC), said that in regards to “Crimes against humanity” it was crucial that any new instrument be consistent with, and not conflict with or undermine, existing international law. Given the global nature of international crimes, it was important to continue working to strengthen inter-State cooperation. The focus of the draft articles on improving national measures as well as cooperation between States and with international criminal tribunals was important. The promotion of complementarity under the Rome Statute remained key, and the strengthening of national capacities and international cooperation would contribute to that.
SHINYA MURASE, Special Rapporteur on “Protection of the atmosphere”, said he was delighted to see that the topic was moving forward. All of the comments and criticisms would be addressed in his fourth report in 2017 if he was re‑elected. He also highlighted that collaboration with scientists was extremely useful, and referred to the Statute of the Commission that encouraged it to consult with various scientific groups. He said he felt strongly encouraged by the remarks of delegates and hoped the Sixth Committee would continue to render its support.
DIRE TLADI, Special Rapporteur on “Jus cogens”, thanked the Sixth Committee for their statements and said that the interaction between the Committee and the Commission was very important. The views expressed by the Committee would certainly find their way into the Commission’s work and hopefully, future reports of the Special Rapporteur.
Introduction to Cluster III
PEDRO COMISSÁRIO AFONSO, Chairperson of the International Law Commission, introduced the third cluster of topics from that body’s report, giving an overview of work done on “Protection of the environment in relation to armed conflicts”, “Immunity of State officials from foreign criminal jurisdiction”, and “Provisional application of treaties”.
Addressing “Protection of the environment in relation to armed conflicts”, he highlighted the Special Rapporteur’s third report, which focused on identifying rules of particular relevance to post-conflict situations while also addressing some issues relating to preventive measures to be undertaken in the pre-conflict phase as well as the particular situation of indigenous peoples. The nine draft principles proposed in that report addressed matters concerning implementation and enforcement; status of forces and status of mission agreements; peace operations; peace agreements; post-conflict assessments and reviews; remnants of war at land and at sea; access to and sharing of information; and rights of indigenous peoples.
Noting that the Commission would consider those drafts at a future session, he recalled the draft introductory provisions and draft principles considered in 2015. The Commission had provisionally adopted eight of those draft principles, together with their commentaries. Draft principle 5 on designation of protected zones provided that States should designate, by agreement or otherwise, areas of major environmental and cultural importance as protected zones. Draft principle 9 on general protection of the natural environment during armed conflict reflected the obligation to protect and respect the natural environment, the duty of care and the prohibition of attacks against any part of the environment, unless it had become a military objective.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said that the Special Rapporteur’s fifth report had analysed questions of limitation and exceptions to the immunity of State officials from foreign criminal jurisdiction. It drew the conclusion that it had not been possible to determine, on the basis of practice, the existence of a customary rule that allowed for the application of limitations or exceptions in respect of immunity ratione personae, or to identify a trend in favour of such a rule. On the other hand, the report reached the conclusion that limitations and exceptions to the immunity of State officials from foreign criminal jurisdiction did apply to State officials in the context of immunity ratione materiae. Consequently, the report contained a proposal for draft article 7 concerning crimes in respect of which immunity did not apply.
The Commission would continue to consider the matter at its sixty-ninth session, he said, noting that members had readily recognized that the subject matter was legally complex and raised issues that were politically sensitive. Some members were of the view that the Commission should focus on codification rather than progressive development of norms in dealing with the issue of limitations and exceptions. The Special Rapporteur’s fourth report had also addressed the scope of immunity ratione materiae concerning “what” constituted an “act performed in an official capacity”, and had provisionally adopted draft article 2(f) and draft article 6.
Statements on Cluster III
EGLANTINE CUJO, representative of the European Union, said that, on “Provisional application of treaties”, the European Union’s founding treaties foresaw the possibility of provisional application, which was widely used in practice. She observed that there was no common view in the Commission with regard to the methodology of the current work. While the Special Rapporteur proceeded on the basis of commentary on individual articles of the Vienna Convention and then largely drew conclusions by way of analogy, the report reflected a wide variety of views held by members of the Commission, a number of whom questioned reliance on analogy and pointed to the need to examine relevant international practice. She welcomed the decision of the Commission to request a memorandum analysing State practice in respect of treaties, deposited or registered in the last twenty years with the Secretary-General, which provided for provisional application. The focus of analysis should be on the main trends of treaty practice.
ØYVIND HERNES (Norway), also speaking for the Nordic countries (Denmark, Finland, Iceland and Sweden), said that armed conflicts not only caused severe human suffering and extensive damage to civilian property and infrastructure, but also widespread destruction and degradation of the environment. Welcoming the adoption of the nine draft principles applicable during armed conflict, he added that they formed a good basis for the discussion on that topic. Draft principle 4 was of great importance, as it focused on States taking all necessary steps to adopt effective legislative, administrative, judicial or other preventive measures to enhance the protection of the environment in relation to armed conflict, in conformity with international law.
Addressing “Immunity of State officials from foreign criminal jurisdiction”, he stated his full agreement with the conclusion that limitations and exceptions to the immunity of State officials clearly applied in the context of immunity ratione materiae for core international crimes. That was the case not only in relation to international tribunals but also in national jurisdictions. He also expressed support for the inclusion of genocide, crimes against humanity, war crimes, torture and enforced disappearances as categories of crimes to which immunity ratione materiae did not apply. Reiterating that, in regards to crimes such as genocide, crimes against humanity and war crimes, no rules of immunity should apply in national jurisdictions, he stressed. “We simply do not see any rational need to uphold immunity for State officials in foreign jurisdictions in connection with such crimes.”
Turning to “Provisional application of treaties”, he said that when the Nordic Countries had agreed on applying treaties provisionally, they considered the treaties to produce the same legal effects as if they were formally in force. That view was reconfirmed by the Special Rapporteur’s fourth report. Noting also the analysis in the report of the practices of multilateral treaty depositories, he said that the list included in the addendum clearly showed that it was common to resort to provisional application in respect of cooperation agreements entered into by the European Union and its Member States with a third State. However, the topic should not be considered concluded in relation to international organizations, as there remained further questions.
HELMUT TICHY (Austria), speaking on “Protection of the environment in relation to armed conflicts”, said draft principle 7 was softly formulated, providing only that provisions regarding environmental protection “should, as appropriate” be included in such agreements about the presence of military forces in relation to armed conflict. Also, there could be an overlap between that draft principle and draft principle 1‑3 on “status of forces and status of mission agreements”. Draft principle 8 might require clarification of its scope, as the term “peace operations” was not defined in international law. Similarly, draft principle 14 on “peace processes” raised the problem of what peace meant, considering that formal peace agreements terminating armed conflicts hardly existed now.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he questioned whether private acts of a State, such as the purchase of prohibited war material, would fall under immunity addressed in those draft articles. The definition of an “act performed in an official capacity” as “any act performed by a State official in the exercise of State authority” failed to clarify whether it also comprised private acts. Regarding draft article 7 on exceptions to immunity, which particularly addressed international crimes, he said he accepted the idea of restricting immunity in certain criminal proceedings. However, it must be considered that such restrictions could be abused for political or fraudulent purposes. Restrictions of immunity should be combined with an international mechanism aimed at preventing such abuse.
On “Provisional application of treaties”, he said further elaboration on the problem of valid consent in draft guideline 10 was needed. The question of internal, mostly constitutional law prerequisites for the provisional application of treaties was one of the most important areas in that field of treaty law. Whether or not a State’s commitment to provisionally apply a treaty could be made depended not only on the provisions of the treaty, but on the State’s internal law. While that notion might seem implicit in the reference to article 46 of the Vienna Convention in draft guideline 10, a more explicit confirmation would be useful.
PETRA BENEŠOVÁ (Czech Republic), addressing “Protection of the environment in relation to armed conflicts”, said she was surprised that the Commission considered it necessary to deal with such a technicality as temporal scope as found in draft principle 1. Also, taking into account that the Commission was not preparing a draft of a potentially binding instrument, she noted that she did not consider it appropriate to introduce to the text the notion of “application”.
Turning to “Immunity of State officials from foreign criminal jurisdiction” she observed that the report contained extensive analysis of well-documented examples of State practice concerning exceptions to the immunity of State officials from foreign criminal jurisdiction. With regards to the exceptions to immunity ratione materiae of State officials from foreign criminal jurisdiction, it might be an uneasy task to identify clearly established rules of customary international law, since the relevant practice of States in that area was varied. However, there appeared to be a trend in State practice to support the existence of an exception to immunity ratione materiae when crimes under international law are committed. That appeared to be reflected in draft article 7(a).
SKYE BALE (Australia) said that it was clear that, in regards to “Provisional application of treaties”, the matter, as well as certain treaty obligations, was permitted by article 25 of the Vienna Convention. There were a number of reasons why States might want treaty obligations to apply prior to entry into force. Formal treaty action in domestic systems could take time and provisional application might be necessary to respond to an international crisis or to ensure the smooth transition of successive treaty regimes.
Concerning the form of the Commission’s final outcome on the topic, she stated her support for the development of the guidelines, though she would similarly support the development of model clauses. Such guidelines or clauses could provide States with significant useful guidance without impinging on the relevant domestic and constitutional requirements of States. Furthermore, it would be helpful to identify the types of treaties and provisions of treaties that were often the subject of provisional application and the motivations behind such application.
DAVID LOW (Singapore) said of “Protection of the environment in relation to armed conflicts” that the Special Rapporteur’s three reports and the Commission’s work would help States address a difficult and very contemporary legal challenge.
Turning to “Immunity of State officials from foreign criminal jurisdiction” and the issue of exceptions to immunity ratione materiae, he noted he had previously expressed disagreement with the characterization by the previous Special Rapporteur of the “predominant view” that there were no exceptions to immunity ratione materiae. He welcomed the conclusion of the current Special Rapporteur that limitations and exceptions did apply to immunity ratione materiae. Concerning the relationship between immunity and responsibility, immunity could not be equated with impunity. The former served only as a procedural bar to criminal proceedings and did not absolve a State official of any individual criminal responsibility on a substantive level.
On “Provisional application of treaties”, he commended the efforts of the Special Rapporteur to engage with the views of States, as well as his collaboration with the Treaty Section of the United Nations Office of Legal Affairs in verifying State practice. More examples were needed to substantiate the conclusions supporting the draft guidelines provisionally adopted to date.
HECTOR ENRIQUE CELARIE LANDAVERDE (El Salvador) voiced support for the scope of the draft principles provisionally approved by the Commission on “Protection of the environment in relation to armed conflicts”. The drafts covered armed conflicts in general, and had abandoned the distinction between national and international. As any type of conflict could produce the same irreversible consequences for the environment, it was necessary to consider both kinds of conflict. In draft principle 9 on general protection of the environment during armed conflict, he noted the use of the expression “natural environment”, saying it was particularly redundant in Spanish and therefore the word “natural” must be removed. Expressing concern about that draft’s provision to protect the environment unless it had become a military objective, he stated that the international community must avoid establishing a principle that would allow for an attack on the environment without making exceptions.
Addressing “Immunity of State officials from foreign criminal jurisdiction”, he called for a balanced posture on the topic of criminal immunity and expressed support for the work of the Commission in identifying those crimes where immunity would not apply. Regarding methodology, he also said he did not share the view of some members of the Commission in requiring prior customary rule for identifying exceptions and limitations; the work of the Commission should not be limited to codification. Furthermore, absence of general practice in the area was an example of prevailing immunity of serious international crimes, he said, underscoring that those were the same crimes which the international community had sought to bring to justice by establishing the International Criminal Court.
On “Provisional application of treaties”, he shared the concern expressed by some members of the Commission that the general regime would be applied automatically whereas some issues in the Law of Treaties did not need to be addressed in the light of the provisional application. However, he reiterated support for the in-depth analysis on the topic and stressed the importance of bringing clarity to provisional application of treaties.
ELSADIG ALI SAYED AHMED (Sudan), turning to “Protection of the environment in relation to armed conflicts”, said he would like to keep the word “environment” over “natural environment” as it was a broader definition. He also noted that, because water was an essential part of the environment, specific articles should be devoted to water sources.
On “Immunity of State officials from foreign criminal jurisdiction” he noted that it was enshrined in international customary law; that fact was not controversial. Although there was no specific definition of “State officials” in draft article 2, it would be useful to have one for the purposes of those drafts. State officials should include all those who represented the State or who carried out work on behalf of the State and all those who occupy positions within the State. He underscored that the definition should not relate to how high in the hierarchy the State officials were. All action by persons representing Governments should be covered by immunity and the criminal nature of the function or act should not affect that.
He noted of the Special Rapporteur’s fourth report on “Provisional application of treaties” that there was a close link between the Vienna Convention and that issue. Awaiting the next report, he stressed the importance to the commentaries and observations, adding that they should be reflected by the Special Rapporteur in his document.
ELENA MELIKBEKYAN (Russian Federation), speaking on “Immunity of State officials from foreign criminal jurisdiction”, noted that the document had not been translated into all working languages, adding that she hoped that it did not set a precedent for future years. The topic had become more politically charged in the current atmosphere and the Commission must proceed carefully. The work the Commission had undertaken concerned the progressive development of international law in the field. That was a trend, she said, that she could not support, as the Special Rapporteur had not been able to demonstrate the existence of such a norm. The goal of putting an end to impunity should not become an instrument to manipulate international norms of law. Immunity did not preclude accountability and was not the same as impunity, she emphasized, expressing the hope that the Commission would follow established working procedures.
Addressing “Provisional application of treaties”, she stressed the practical importance of the topic. It was also important to take into account that the provisional application of treaties gave rise to legal consequences. Drawing attention to article 19 of the Vienna Convention which provided for the possibility for entering reservations at the time of signing an international treaty, she said that the majority of the guidelines put forward by the Commission were of a general nature and added little specificity to the existing regime.
YOUSSEF HITTI (Lebanon), addressing the draft principles on “Protection of the environment in relation to armed conflicts”, said that he valued the inclusion of those that related to the remnants of war and the remnants of war at sea. On draft principle 15, which dealt with post‑armed conflict environmental assessments and remedial measures, it could have been drafted in a more prescriptive manner. As well, the issue of remedial measures should have been treated as a stand‑alone subprinciple. On draft principle 17 on the remnants of war at sea, he said he favoured the original proposal from the Special Rapporteur to include public health or the safety of seafarers. He also noted he would have seen merits in including the human dimension of the environmental impact of armed conflicts, as it fell within the scope of the topic as environmental degradation had a direct impact on population.
STEFAN RACOVITA (Romania) said he could not stress enough the importance of the Commission’s consideration on “Protection of the environment in relation to armed conflicts”. Indigenous people were dependent on the environment of the territories they inhabited and damage during armed conflict had direct consequences on all people who depended on that territory. He noted that the Commission might want to consider a more general statement aimed at the protection of people who had a close connection to the environment.
Turning to “Immunity of State officials from foreign criminal jurisdiction” he said that the Commission should primarily focus on the codification of the norms of international law, including the aspects of limitations and exceptions. A distinction should be made in respect to immunity ratione personae and immunity ratione materiae for the purpose of the exercise of foreign criminal jurisdiction; immunity ratione personae was a procedural bar to jurisdiction that could not conflict with substantive rules of international law. There was merit in identifying the acts which, even if performed in an official capacity, could not fall within the immunity ratione materiae and could be prosecuted under foreign criminal jurisdiction once the immunity ratione personae had ceased.
On “Provisional application of treaties” he said he agreed with members of the Commission that more examples of practice were needed. He also said he supported the idea of examining the question of interpretive declarations made by States provisionally applying a treaty
CHRISTOPHER STEPHEN (United Kingdom) said that, on “Protection of the environment in relation to armed conflict”, the international legal basis for a number of draft principles was unclear. He noted the controversy surrounding the formulation of draft principle 12 and the Special Rapporteur’s description of its inclusion as promoting the progressive development of international law. Given that those texts covered a range of issues, it was difficult to see how the eventual output would look as a whole.
Turning to the topic of “Immunity of State officials from foreign criminal jurisdiction”, he said adopted draft articles dealing with the term “act performed in an official capacity” and the scope of immunity ratione materiae must be reviewed. The question of whether or not acts ultra vires could be considered official acts for the purpose of immunity must be addressed. In respect of draft article 7(1), a violation of a jus cogens norm pertaining to a criminal office did not constitute an exception to immunity.
States which were parties to the United Nations Convention against Torture had implicitly waived the immunity of their officials in relation to the offence of torture, he continued. However, an equivalent exception did not exist in respect of the other offences. Furthermore, crimes of corruption should not form an exception to immunity. The international legal basis was unclear for paragraph b of draft article 7(1), and the adoption of such an exception could undermine the immunity of State officials by facilitating spurious or politically motivated prosecutions in foreign jurisdictions.
With regards to the “Provisional application of treaties”, he supported the preparation of draft guidelines, as it was a matter that often arose in practice and on which there was no clarity. He also noted the development of draft guideline 10, concerning the obligation not to invoke internal law as justification for non‑compliance. Among other things, he emphasized that the interplay between provisional application and the making of reservations would merit further consideration. An analysis of the practice of States and international organizations would be of assistance in conducting a full and comprehensive consideration of that issue.
SUSANA VAZ PATTO (Portugal) said, in regards to “Protection of the environment in relation to armed conflicts”, that she supported the inclusion of references to human rights in the draft principles, adding that all three phases of conflict —— before, during, and after — should be considered. Furthermore, the Commission could focus its attention on the responsibility of non‑State actors and foster consultation with entities such as the United Nations Educational, Scientific and Cultural Organization (UNESCO).
Addressing “Immunity of State officials from foreign criminal jurisdiction”, she stressed the exceptional nature of the immunities and the need for a proper, fair, and reasonable assessment. Within the Commission, there were different views about the approach taken by the Special Rapporteur. Noting that the Commission has decided to continue its consideration, she said that substantial comments would be premature at the present time. The sensitive and complex nature of the topic meant that the outcome should be the result of a thorough and mature debate.
Turning to “Provisional application of treaties”, she said the aim should be to clarify the legal regime of provisional application contained in the Vienna Convention. Thus, the objective should remain the development of a set of draft guidelines, possibly with model clauses. It would be useful for the ILC to undertake a comparative study of domestic provisions and practice on provisional application, as a diversity of solutions existed at the national level. Welcoming the Commission’s decision to request the Secretariat to prepare a memorandum analysing State practice in respect of treaties, she added that it would also be useful to include in the study the practice of regional international organizations.
SEBASTIAN ROGAČ (Croatia), on “Immunity of state officials from foreign criminal jurisdiction”, noted that the definition of torture in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was different from the definition adopted as part of the Commission’s ongoing work on crimes against humanity. It was necessary to define whether torture was a crime to which immunity did not apply. He said he looked forward to the next report which should address the procedural aspects of the immunity topic.
Turning to the “Provisional application of treaties”, he said its legal effects primarily concerned obligations arising from the principle of pacta sunt servanda, including the obligation to refrain from defeating the object and purpose of the treaty. He also welcomed supplementing draft guideline 2 to reiterate that the practice of provisional application needed to adhere not only to the Vienna Convention and other rules of international law, but also the principles of international law.
Article 60 of the Vienna Convention on the Law of Treaties was ——mutatis mutandis—— applicable in its entirety in the context of the topic, he continued. A trivial violation of a provision considered essential might constitute a material breach. In assessing the essentiality of treaty provisions in the context of terminating or suspending treaty operation, the reasons motivating treaty conclusion must be taken into account. The Vienna Convention and its most authoritative commentators agreed that “what matters here is what matters to the parties” and that there was no ground for the Commission’s report to assert otherwise.
Finally, on the topic “Protecting the environment in relation to armed conflict”, he stressed that as a State recently experienced in the devastating effects of such conflict, Croatia was following the Commission’s work closely. It was appropriate to further assess the possibility of transforming the draft principles into draft articles to demonstrate the importance the international community attached to them.
PROF. JOSÉ MARTÍN Y PÉREZ DE NANCLARES (Spain), speaking on “Protection of the environment in relation to armed conflicts”, pointed to the excessive length of the report and felt it had been insufficiently analysed. An additional problem was the impossibility of drawing clear limits between the three phases of conflict. “The consequence is that it is very complex to establish the law governing the third phase,” he said, noting that the second phase — the conflict itself — was covered in the law of armed conflict. Greater attention and study needed to be paid to issues of occupation, the practice of non‑State actors, indigenous peoples, and the question of responsibility or the applicability of the precautionary principle. While applauding the new structure of the draft principles, he said that the criteria for placement of provisions in one part of conflict or another remained unclear.
On “Immunity of State officials from foreign criminal jurisdiction”, he said he agreed with the proposed definition of an “act performed in an official capacity” in draft article 2(f). However, on draft article 6, he said he did not understand why immunity enjoyed by Heads of State, Heads of Government and Ministers of Foreign Affairs after the end of their term in office was not openly described as immunity ratione materiae, given that those three categories of persons fell within the definition of “State official.” Similarly, in paragraph 3 of article 6, “individuals” should be “officials” or specifically “officials who enjoyed immunity ratione personae in accordance with draft article 4”, he said.
On “Provisional application of treaties”, he said that draft guideline 10 limited to States was difficult to understand. Also, international organizations should also have been included. The wording should be brought into line with article 27 of the Vienna Convention. A distinction should also be made as to whether the treaty in question had been provisionally applied prior to or after a subject expressed their consent to being bound by it.
JEEM LIPPWE (Micronesia), addressing “Protection of the environment in relation to armed conflicts”, voiced his regret that wrecks of military ships and aircraft as well as unexploded ordinances were within the territory of Micronesia. In the former headquarters of the Japanese naval fleet, there were over 60 military wrecks in an area only 40 miles wide, including areas where oil was leaking into the water, causing hazard to the marine system and the local population. The dangers posed to the population were persistent and significant.
It was unconscionable that those wrecks had remained underwater for many decades without prospect of being removed by responsible parties, he continued. Micronesia had submitted comments to the Commission on that topic and the Special Rapporteur’s report cited those comments extensively. Micronesia had a history as a victim of war during major armed conflicts waged by foreign powers. The draft principles would go a long way to ensure that the environments of States like Micronesia were not damaged “for all eternity” by foreign powers.
Responding to suggestions that the pre‑conflict and post‑conflict phases should be limited to the periods immediately before and after conflict, he added that such limitations were irrelevant because the fiscal remnants of war could pose persistent threats to natural environments for years, if not decades after cessation of hostilities. Furthermore, responding to those who believed that the draft principles went too far beyond the protection of the environment, he stressed that a natural environment could not be viewed as distinct from the people who inhabited it and relied on it for sustenance.
His Government was also concerned that the draft principle on remnants of war no longer included the language that emphasized that necessary removal actions should be taken “without delay after the cessation of active hostilities”, he stated. Any delay in the removal could spell disaster and pose a continuing a hazard to the population.
Finally, welcoming the draft principles dealing with the rights of indigenous peoples in relation to their natural environment, he said that terrestrial and maritime areas and resources were typically of great importance for indigenous communities, and closely linked with their cultural practices, socio‑political rankings, traditional identities, and basic sustenance. That was particularly true of indigenous communities that were bystanders to armed conflicts waged by other States in those areas. Protecting those natural environments was equivalent to protecting the indigenous communities that depended on those environments.