As the Sixth Committee (Legal) concluded consideration of Cluster II from the International Law Commission’s Report, delegates expressed varying opinions about the draft principles on “Protection of the environment in relation to armed conflicts”, with some cautioning against the broad scope of the drafts while others stating that the provisions furthered the international community’s efforts to safeguard the environment.
The representative of the Russian Federation pointed out that the scope of the draft principles covers the periods before, during and after armed conflict, with a fifth of the draft devoted to principles applicable for after armed conflict. However, the periods before and after are considered peacetime, she said, adding that the general norms pertinent to the environment apply during those times. The drafts are unjustifiably expanding the scope of the subject, she said.
The representative of the United Kingdom also noted that the draft principles covered the whole conflict cycle of armed conflict, as well as the law of armed conflict, international human rights law and international environmental law. Further, he said, the sources cited are of varying degrees of authoritativeness, many of which do not constitute State practice.
The United States’ delegate also expressed concern, observing that several draft principles are phrased in mandatory terms of what States “shall” do. Calling on the Commission to clarify the intended legal status of draft principles as distinguished from draft articles and guidelines, he highlighted the recommendations on corporate due diligence and liability. It is unclear why the Commission has singled out corporations for special attention, but not other non‑State actors, such as insurgencies, militias, criminal organizations and individuals, he said.
Viet Nam’s representative, however, welcomed the provisions on corporate liability, which indicate that non‑State actors also bear responsibility for environmental damage during armed conflicts. She commended the Special Rapporteur’s decision to integrate the law on occupation, international humanitarian law and international environmental law. Sharing her country’s experience of war, she said that while it ended many decades ago, its effects are still seen and felt.
The delegate of Cyprus also highlighted the draft principle on corporate liability but recommended the inclusion of “affiliate entities” in addition to subsidiaries, to the extent that any such affiliate acts under the direction or control of another affiliate entity. Further, quoting a recent International Committee of the Red Cross (ICRC) report, he pointed out that “over 80 per cent of all major armed conflicts between 1950 and 2000 took place directly in biodiversity hotspots that sustain around half the world’s plants and many rare species of animals.”
Along similar lines, the observer for the Holy See said: “We fight over the ever more scarce resources of our planet and exploit the same resources to continue our fights.” Calling the draft principles “timely and required”, he noted that at least 40 per cent of intra‑State conflicts can be associated with exploitation of resources.
War is by definition an enemy of sustainable development, said Colombia’s delegate. The environmental impact of war is embedded in his country’s experience, including: illegal mining, cutting down of trees, oil dumping and the explosive remnants of war affecting thousands of hectares. A “glaring omission” in the draft principles is that they do not refer to non‑State armed groups, he said, calling for a draft principle highlighting their responsibility to protect the environment.
He also joined other delegations expressing their concerns regarding “Sea‑level rise in relation to international law” and the matter of Statehood. The current laws do not provide protections to people and communities who will lose their homes and territories due to sea‑level rise. What is the scope of human rights in defending their rights, he asked, also wondering: “And when does a State cease to exist?”
Egypt’s representative also highlighted the issue of Statehood as an important aspect of that topic. While it is necessary to address all dimensions of the Law of the Sea and the protection of persons affected by rising sea levels, the issue of Statehood needs more consideration in the context of the current study.
Echoing that, Liechtenstein’s delegate pointed out that the subtopic of “Statehood” has so far been insufficiently addressed in other authoritative forums. In the Pacific, rising sea levels have already begun to inundate whole islands, he said.
Delegates also weighed in on the draft articles on “Immunity of State officials from foreign criminal jurisdiction”, appealing to the Commission to treat this subject with caution, particularly draft article 7 concerning crimes under international Law in respect of which immunity ratione materiae shall not apply.
Cameroon’s delegate stressed that immunity from the jurisdiction of other States is a corollary of the principle of sovereign equality. Immunity belongs to the State, which then cedes it to officials acting on its behalf. Underscoring the well‑established customary nature of immunity for State officials, he called attempts to progressively restrict this immunity an “underhanded move”. He also underscored the need to uphold immunity for Heads of State, Heads of Government and Ministers for foreign affairs.
Germany’s delegate said the controversial draft article 7 does not strike a proper balance between the much‑needed stability in international relations and the need to tackle impunity. Underscoring the importance of thoroughly considering the procedural rules that flesh out the conditions for applying that principle, she said it raises difficult questions regarding the applicable standard of proof.
The Sixth Committee also began its consideration of the final cluster of chapters of the Commissions’ report. That includes chapters VII on “Succession of States in respect of State responsibility” and IX on “General principles of law”.
Questions of succession of responsibility, said Belarus’ representative, have typically been resolved on an ad hoc basis. Noting that the topic tended to be specific and sensitive, he said he supported giving the leading role to agreements between the States in question and a subsidiary role to the draft articles. Future work on these articles should result in guidelines for practice, rather than a treaty, he stressed.
Sierra Leone’s delegate addressed “General principles of law” with a similar note of caution. While the Commission could provide useful illustrations of widely accepted principles of law derived from national or international systems, drawing up a list of substantive general principles would be unsound and could take many years, if not decades, to complete, she said.
Also speaking today were representatives of Morocco, Canada, Papua New Guinea, Japan, Estonia, Republic of Korea, Belize, Malaysia, Chile, Lebanon, Nicaragua, Peru, Philippines, Azerbaijan, Indonesia, Bangladesh, Algeria, Armenia, Norway (also for Sweden, Finland, Denmark and Iceland), Austria, Slovakia, France, Cuba, Ireland and the Netherlands.
The Sixth Committee will next meet at 10 a.m. on Wednesday, 6 November to continue its consideration of topics in the third cluster of the report of the International Law Commission.
Statements on Cluster II
Ms. SEBBAR (Morocco), aligning herself with the African Group, voiced appreciation for the draft articles on “Crimes against humanity”. Some of the key aspects require more thorough study, she said, noting that national public institutions will be affected by the proposed convention.
On “Protection of the environment in relation to armed conflicts”, she said that the Commission’s work offered a multilateral normative framework for that topic. Some of the instruments that inspire the Commission should be added to the references cited in the report. Further, there is no legal definition of “environment”, she said, expressing doubt as to whether the adjective “natural” should be retained. Turning to principle 8, she said it poses the challenge of considering how a State or organization can determine how much it should contribute to reparations if there is environmental damage.
Noting that the Commission’s goals are lofty and ambitious and its output rich and complex, she said some Member States face constraints in interacting with the Commission because of their limited human resources or expertise in international law. Therefore, she called on the Commission to streamline the number of topics on its programme.
CATHERINE BOUCHER (Canada), on “Sea-level rise in relation to international law”, reiterated the need to address this climate change-driven phenomenon. With the longest coastline in the world, “we are keenly aware that portions of our coastline, notably in Canada’s north, are especially vulnerable,” she said. Noting that some of the Law of the Sea issues may trigger broader debates that unnecessarily complicate the task at hand, she called for a more focused approach to the review. For instance, when considering the possible legal effects of sea‑level rise on the status of islands and rocks, the Commission should indeed consider those effects but without entering into a complex debate over the specific characteristics that may grant the status of “rock” or “island”.
EDWARD HAXTON (United Kingdom) on “Protection of the environment in relation to armed conflicts”, welcomed the Commission’s completion this year of the first reading of a set of draft principles and accompanying commentaries. The scope of the draft principles is very wide, covering the whole conflict cycle and the law of armed conflict, international human rights law and international environmental law. The commentaries cite a number of sources in support of the draft principles, of varying degrees of authoritativeness, many of which do not constitute State practice. The topic should not be broadened in scope to examine how other legal fields relate to it. He also noted his concern about references in the draft principles to human health alongside the environment.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he expressed gratitude for the inclusion in the report of nine draft articles regarding procedural aspects for consideration by the Commission. Notwithstanding this progress, the Commission is still very far from being in a position to submit a clear and acceptable proposal. This objective remains out of reach, not least because of persistent and significant differences with the Commission on the subject of exceptions or limitations to immunity ratione materiae.
Regarding “Sea-level rise in relation to international law”, he said that his Government welcomed the Intergovernmental Panel on Climate Change Special Report on the Ocean and Cryosphere in a Changing Climate, which provides the best available science on the wide range of impacts of climate change as well as potential measures for building resiliency.
FRED SARUFA (Papua New Guinea), aligning himself with the Pacific Small Island Developing States, the Pacific Islands Forum and the Alliance of Small Island States, said, in regards to “Sea-level rise in relation to international law”, that inundated islands and receding coastlines continue to be a serious threat to coastal communities’ way of life and a grave concern to the sustainable future of maritime nations. The potential loss of small islands or other features as basepoints due to sea‑level rise is particularly important for archipelagic States. Such changes could affect existing maritime‑zone entitlements and compromise a State’s ability to maintain its existing archipelagic status. He stressed that such States’ baselines and outer limits of maritime zones that have been determined in accordance with the 1982 United Nations Convention on the Law of the Sea should not require recalculation if sea-level rise affects geographical realities. Affected States should also be able to maintain existing entitlements to maritime zones on the grounds of climate justice and equity, he said.
AHMED ABDELAZIZ ELGHARIB (Egypt) said he appreciated the importance of developing draft principles on the topic of “Protection of the environment in relation to armed conflicts” to address legal gaps. However, there is room for improvement on the principles in their current form, including according increased attention to the responsibility of non‑State actors for damage to the environment. Egypt will provide detailed observations on these principles within the specified time frame, he added.
He highlighted the importance of “Immunity of State officials from foreign criminal jurisdiction” and called for caution in this matter to reflect lex lata and international customary law without introducing new legal norms. However, he noted his reservation regarding draft article 7’s current state. While many countries diverge on the way this article should be drafted, there is agreement that its current form does not reflect international law. If this article’s purpose is to end impunity, it does not fulfil this goal and could instead politicize the issue, leading to unnecessary tensions in international relations. Thus, the article needs radical redrafting. He also observed that the procedural guarantees do not differentiate between immunity ratione personae and immunity ratione materiae. International norms and political consideration require different rules applied to each type of immunity.
Turning to “Sea‑level rise in relation to international law”, he commended the incorporation of this topic into the Commission’s programme of work as a model of according attention to contemporary themes to develop and codify international law. Regarding this subject’s proposed subtopics, he noted his support for addressing all dimensions of the Law of the Sea and the protection of persons affected by rising sea levels but said that the issue of Statehood needs more consideration in the context of the current study.
CHINATSU TAKAGI (Japan), commenting on “Protection of the environment during armed conflict”, said it is best for the Commission in its consideration of the topic to emphasize the protection during conflict, as opposed to before or after an armed conflict, so as not to overload the Commission’s work.
Regarding “Immunity of State officials from foreign criminal jurisdiction”, she observed that the only progress made was the Drafting Committee’s provisionally adopting draft article 8 ante. It is important for the Commission to consider draft article 7 “carefully and soundly”, a text she viewed as development of a new law (lex ferenda), she said, adding that she expected the article ultimately to be built through consensus with the necessary modifications. It is necessary to collect State practices on this issue from many regions and analyse them comprehensively. It is also important to conduct careful consideration of the trial phase and the investigation phase. As well, it is necessary to address the “inviolability of State officials” at the stage of investigation.
Turning to “Sea‑level rise in relation to international law”, she said the topic may encompass a wide range of issues under international law as sea‑level rise affects the baseline and other legal points related to the law of the sea. Japan is confident of the Commission’s ability to produce an outcome in close dialogue with States, she said.
Ms. PHAM THU HUONG (Viet Nam), on “Protection of the environment in relation to armed conflicts”, observed that the effects of the war, which ended many decades ago, are still visible and felt in her country. Such work by the Commission should complement existing international law on the protection of the environment and laws governing armed conflicts. She also commended the Special Rapporteur’s decision to integrate the law on occupation, international humanitarian law and international environmental law in the report and to include a provision on corporate liability, which indicates that non‑State actors also bear responsibility for environmental damage during armed conflicts. Regarding the protection of the environment of indigenous people, she said that the concept of “indigenous people” does not enjoy broad consensus in the context of the law of armed conflicts; the concept of “ethnic minorities” enjoys larger consensus.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, she noted that this immunity originates from customary international law. As such, the codification of rules on this topic must give due regard to the principles of sovereign equality and non‑intervention into the domestic affairs of States. It also ensures a balance between the benefits of granting this type of immunity and the need to address impunity. This includes protecting State officials from politically motivated or abusive exercise of criminal jurisdiction; on this point no specific proposals regarding exceptions of immunity or procedural aspects were submitted in the recent report. Also expressing concern on the application of draft article 7, she said that the criminality of an act does not affect or determine whether an act is performed in an official capacity. All acts performed in the exercise of State authority, State functions and sovereignty should enjoy immunity ratione materiae, she said.
Regarding “Sea‑level rise in relation to international law”, she supported the formation of an open‑ended study group. Rising sea levels resulting from climate change have become a growing global phenomenon generating global problems. Sea‑level rise substantially impacts the coastlines and low‑lying areas offshore of Viet Nam, affecting the livelihood, health, culture and well‑being of its people, particularly those living along the shore. Viet Nam therefore seeks to promote international cooperation in this area for constructive discussions regarding the challenges that sea‑level rise poses for small‑island developing States and coastal States, she said.
Mrs. HEUSGEN (Germany), commenting on “Immunity of State officials from foreign criminal jurisdiction”, said that the controversy around draft article 7 underlines the importance of thoroughly considering the linkage between it, as formulated by the Commission, and the procedural rules that flesh out conditions of its application. Any ambiguity on the application of procedural provisions and safeguards should be avoided. Further, its application would raise difficult questions regarding the applicable standard of proof in determining whether its requirements had been met. Draft article 7 in its present form does not strike a proper balance between the much-needed stability in international relations and the interest of the international community in preventing and punishing the most serious crimes under international law, she said.
Turning to “Protection of the environment in relation to armed conflicts”, she said that two Special Rapporteurs have shed light on it from many different angles. The division of the draft principles into temporal phases before, during and after an armed conflict is appropriate, since legal regimes, such as international humanitarian law, the law of occupation and international environmental law and human-rights law, can come into play in the different phases of a conflict. These draft principles are, to a large extent, not a codification of existing law; rather they aim to further develop it. The international community should promote legal development in this area in order to prevent future environmental disasters resulting from armed conflict. She also noted her appreciation for the Commission’s transparent communication about its intention to further develop the law. On draft principle 12, which refers to the Martens Clause, it is indeed necessary to confirm the existence of rules on the protection of the environment in times of armed conflict that transcend explicit treaty provisions.
MERJE MÄGI (Estonia), on “Protection of the environment in relation to armed conflicts”, recommended several changes in the text, including altering the wording of paragraph 193 and principles 4, 13 and 17. For example, she said she agreed with the proposal in paragraph 193 whereby no definition of the term “the environment” is included in the draft principles. However, it would be wise to consider and specify whether the environment under these principles includes the man‑made environment or certain parts of it, such as parks and beaches.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, she suggested further changes to article 7, paragraph 1, including the crimes of aggression to the list of crimes in which immunity ratione materiae does not apply. She also expressed support for draft article 9 and the determination of immunity. It is up to the court of the forum State to decide whether immunity exists or not, adding that the draft does not rule out the role and participation of other national authorities.
Regarding “Sea‑level rise in relation to international law”, she emphasized that in connection with the sea‑level rise, the constituent elements of the State, as well as well‑established rules of maritime delimitation, could be challenged. Another important aspect is the protection of persons affected by the phenomenon, she said, adding that she hoped to see a comprehensive study of issues on this matter in future Commission reports. Because the topic requires an analysis of unprecedented issues, unconventional solutions and thinking “outside the box” need to be considered.
JU YEONG YANG (Republic of Korea), on “Protection of the environment in relation to armed conflicts”, said the Commission’s temporal approach makes it possible to take a comprehensive view on the subject while identifying concrete legal issues that may emerge at different stages of an armed conflict. She also noted her support for the final outcome of the draft principles, which contain provisions of different normative value, some of which reflect customary international law while others have a more recommendatory nature. Therefore, the draft principles are the appropriate form for this topic. Through them, the Commission will provide guidance to States.
Turning to “Immunity of State officials from foreign criminal jurisdiction” and specifically draft article 8, she said that procedural provisions and safeguards should be applied to both immunity ratione personae and immunity ratione materiae. While she agreed with Commission members on the need to consider immunity “at an early stage of the proceedings”, she said the Commission needs to clarify the meaning of “at an early stage”. Diplomatic channels are preferable for communications concerning immunity between the forum State and the State of the official, she said, adding that concerned States should have the freedom to choose the means of communication.
The topic “Sea‑level rise in relation to international law” is an intergenerational issue, and the current generation needs to establish an effective and viable legal system for the future generation, she said. This topic should be dealt with comprehensively from the perspective of lex ferenda and not limited to lex lata. The legal regimes of each area — environmental law, human-rights law, humanitarian law, etc. — should be considered on an interdisciplinary basis.
LOIS MICHELE YOUNG (Belize), focusing on “Sea‑level rise under international law”, welcomed the Commission’s decision to establish a study group to examine the legal implications, which is of particular concern for small island developing States. “Over the next century, rising sea levels could inundate significant portions of our land, leaving vital infrastructure like airports and roads heavily impacted,” she said. While rising seas may affect small island developing States most acutely, these effects will soon be felt by all States. “It is time for international law to respond to this issue,” she stressed, adding that the Commission must consider the perspectives of small island developing States whose economies depend on stable baselines from which these maritime zones are measured. More so, small island developing States have contributed virtually nothing to the climate crisis and yet these consequences are manifestly unjust. Moving towards fixed baselines is consistent with existing international law. “Fixed baselines are the next step down the path that State practice has already begun to walk,” she said. Relying on current practice and existing international law alone will be insufficient to respond to this growing problem. Existing rules and practices are not equipped to handle the drastic future projections for climate change‑induced sea‑level rise.
SUZANA ABDUL LATIFF (Malaysia), speaking on “Protection of the environment in relation to armed conflicts”, expressed concern about draft article 8, which dictates a positive obligation upon States like Malaysia that otherwise owe no direct legal obligation to displaced persons. On draft principle 9, compensation is the preferable and logical form of reparation in case of environmental damage, because natural recovery may not always suffice. The Commission should study how to effectively enforce such reparations during armed conflict. Technological advancement and military capacity development, as noted in principle 19, makes the future unpredictable, she said, expressing support for including the principle. With regards to principle 26, while it highlights States’ collective responsibility for relief and assistance, it must be considered in the context of the common and differentiated responsibility of each State towards implementation.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, she said Malaysia is prepared to waive immunity of State officials when facing foreign criminal prosecution. Diplomatic immunity is a bedrock of international law and there should be a presumption of immunity until a contrary determination is made conclusively. Jurisdiction by a forum State should only be exercised when clear and definitive proof of the alleged offence exists. International practice has not demonstrated the existence of a custom or consistent trend establishing exceptions to immunity. On draft article 9, the view about the necessity of a State official’s presence in the forum State’s territory raises complex issues of primacy and jurisdiction conflicts and may lead to greater ambiguity in developing principles. Moreover, the transfer of proceedings to the State of the official will help strike a balance between the principle of sovereign equality and ensuring the absence of impunity. The present drafting of article 14, however, allows for divergent interpretations on who should initiate the transfer proceedings; this must be clarified.
On “Sea-level rise in relation to international law”, she noted that the issue is best addressed before it is too late. As such, she noted that the study group will approach the issue through three areas related to the law of the sea, Statehood and the protection of persons affected. These areas warrant focus because they are at the forefront of popular opinion around the world, she observed.
EMBAJADORA MARIANA DURNEY (Chile), on “Immunity of State officials from foreign criminal jurisdiction”, applauded the sensible and level‑headed analysis in the Special Rapporteur’s work. Highlighting draft article 8, on consideration of immunity by the forum State, she said it does not clearly express the scope of this obligation. The article must clearly indicate the minimum obligations of the State to consider immunity. As it intends to undertake any act that entails the exercise of criminal jurisdiction over a foreign citizen, the relevant authorities of the forum State must refrain from proceeding against the official until they have determined whether immunity does apply or not in this case. Therefore, article 8 should include a new paragraph that clarifies how the State should behave while it is considering if immunity is applicable, she said.
MATTHEW EDBROOKE (Liechtenstein), adding his support for the inclusion of “Sea‑level rise in relation to international law” in the Commission’s work, highlighted the grave threat to the lives and livelihoods of tens of millions of people across the globe in the vast majority of Member States. The most severe consequences of that phenomenon are being felt in low‑lying island States, notably in the Pacific, where rising sea levels threaten access to key natural resources — including clean water — and have already begun to inundate whole islands. Given these human implications, the topic should be addressed with the protection of the rights of the affected people at its forefront, he said, noting that the subtopic of “Statehood” has so far been insufficiently addressed in other authoritative forums.
HARIS CHRYSOSTOMOU (Cyprus), regarding “Protection of the environment in relation to armed conflicts”, questioned how to ensure work on the topic just clarify and codify the responsibility of an occupying Power vis-à-vis the territory it occupies while not creating — or allowing the interpretation of creating — rights of any kind over the territory, people, environment and resources under the effective control of either a State or a non‑State armed group. An International Committee of the Red Cross (ICRC) report published last month states “over 80 per cent of all major armed conflicts between 1950 and 2000 took place directly in biodiversity hotspots that sustain around half the world’s plants and many rare species of animals.” On draft principle 11 regarding corporate liability, he recommended the inclusion of “affiliate entities” in addition to subsidiaries, to the extent that any such affiliate acts under the direction or control of another affiliate entity. On draft principle 21, he emphasized the point made in paragraph 2 and the importance of the Commission’s position, outlined in paragraph 3 of the commentaries, that the relevant provision is based on article 55 of the Hague Convention.
Turning to “Sea‑level rise in relation to international law”, he recalled the statement made at last year’s Sixth Committee plenary meeting, including the importance that results of any study undertaken must agree with the Convention on the Law of the Sea. In carrying out such work, the Commission does not have the mandate, nor is there sufficient State practice, to proceed towards codification. “We would like to reiterate that any attempt to modify or in any way to modify the UNCLOS will have detrimental consequences,” he added.
Mr. HITTI (Lebanon) expressed appreciation for the Commission’s inclusion of new subjects on its agenda, particularly the topic of “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law”. While it is important not to overload the Commission’s work in order to preserve its quality, the number of subjects it is currently studying represents an acceptable balance, he noted.
On “Sea-level rise in relation to international law”, he said that the Commission must be able to react to challenges that arise in international law, and its study of this subject is a good example of this. He added his support for the establishment of a study group on the topic.
Regarding “Protection of the environment in relation to armed conflicts”, he expressed support for the Commission’s consideration of three different phases of conflict — before, during and after — in its work on this issue. The reference in draft principle 8 to displaced persons is important and should also apply to the regions and areas through which such persons transit. He also suggested that it might be helpful to include principles relating to the environmental impact of the use of certain types of arms. While the Martens Clause might cover this issue, given its importance, a stand-alone reference should be made, he said.
JUAN CUELLAR TORRES (Colombia), on “Protection of the environment in relation to armed conflicts”, said that environmental damage can prevent the rebuilding of societies after war. This is why the 1992 Rio Declaration on Environment and Development included principle 24, which states that war is, by definition, an enemy of sustainable development. So far, laws that have been passed to reduce or repair environmental damage incurred during war have not been sufficient or effective. Colombia’s citizens are still suffering the impact of illegal mining, cutting down of trees, explosive remnants of war affecting thousands of hectares, dumping of oil and other environmental damage. The Government is encouraging those who have reintegrated into society to give detailed information to help repair the damage done. Noting that the draft principles do not refer to the responsibility of non-State armed groups, he called it a “glaring omission” and called for a draft principle highlighting the responsibility of such groups to protect the environment.
On “Sea-level rise in relation to international law”, he welcomed its inclusion in the programme of work. International law relies on stable geographical features when it determines the rights of States and their territoriality. In the not–too-distant future, there will be challenges to this, he cautioned. That calls for an in-depth re-evaluation of existing environmental law, migration law, and human-rights law. The current laws on refugees and statelessness do not provide protections to people and communities who will lose their homes and territories due to sea-level rise. What is the scope of human rights in defending their rights, he asked, also wondering about their right to resettle vis-à-vis the right to self‑determination. “And when does a State cease to exist?” he asked.
MARK A. SIMONOFF (United States), on “Protection of the environment in relation to armed conflicts”, said the Commission should clarify the intended legal status of draft principles as distinguished from draft articles and guidelines. He said he had concern with several other draft principles phrased in mandatory terms of what States “shall” do. For example, draft principle 8 purports to introduce new substantive legal obligations in respect to peace operations. Draft principles applicable to situations of occupation similarly go beyond what is required by the law of occupation. Separately, the draft principles include two recommendations on corporate due diligence and liability. It is unclear why the Commission has singled out corporations for special attention and not other non‑State actors, such as insurgencies, militias, criminal organizations and individuals.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he reiterates his delegation’s serious concerns which had been detailed in previous years. Draft article 7 is not supported by consistent State practice and opinio juris. As a result, it does not reflect customary international law. The Commission should work by consensus on this difficult topic. In addition, some of the Special Rapporteur’s suggestions overlook practical consequences. For example, some provisions could very likely have a severe detrimental effect on the investigation and prosecution of crimes crossing international borders. The draft articles disregard the fundamental principle and practice observed in the United States that foreign immunity is not considered a bar to criminal investigation. His country’s prosecutors may investigate crimes involving foreign officials without notifying the foreign official’s State about the investigations or of potential immunity issues. The Special Rapporteur also did not address difficult questions raised by many countries in last year’s debate, such as how to address the issue of politically motivated or abusive prosecutions.
Regarding “Sea‑level rise in relation to international law”, he said he was still concerned that the topic, as proposed by the Commission, did not meet two of the Commission’s criteria for selecting a new topic. It is appropriate that the Commission chose to move this topic to its active agenda via a study group, open to all Commission members. The study group’s issue papers should be available to all Member States. He also noted his support for efforts to identify measures to protect States’ maritime entitlements under the international Law of the Sea in a manner consistent with the rights and obligations of third States.
JAIME HERMIDA CASTILLO (Nicaragua), speaking on “Immunity of State officials from foreign criminal jurisdiction”, observed the controversial nature of draft article 7, which says that immunity ratione materiae does not apply to certain crimes. He expressed displeasure that “aggression” is not on this list of crimes; no legal justification has been offered for this omission. Reiterating the nature of this article as an exception — rather than the rule — he said that it does not reflect State practice but instead lex ferenda. He called on the Commission to define “criminal jurisdiction” and to establish dispute-settlement mechanisms so disputes over immunity can be settled by an impartial international body rather than a national system that might be subjected to external political pressure or that itself wants to politicize a situation.
Turning to “Sea-level rise in relation to international law”, he welcomed the Commission’s decision to include this important topic and commended the establishment of an open‑ended study group with rotating co‑chairs designed to represent the various regions of the world. The Commission should include in the list of subtopics for study the international and historic responsibility of States for sea‑level rise, he said, noting its relevance.
SANDRA RODRÍGUEZ (Peru), on “Protection of the environment in relation to armed conflicts”, welcomed the fact that the scope of the draft principles covers the protection of the environment, before, during and after an armed conflict. Also highlighting the Marten’s clause, she emphasized the need to duly take environmental considerations into account in the principle of proportionality.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, she said she agreed with the approach taken by the Special Rapporteur regarding the procedural aspects of immunity. The drafts strike a balance between the rights of the foreign State and the upholding of the rights and guarantees of the State of the official. Highlighting the preferability of using diplomatic channels for the indication of immunity and to communicate any potential waiver of immunity, she said that such communications must make explicit reference to the official in question and the acts covered.
Applauding the inclusion of “Sea‑level rise in relation to international law”, she also commended the decision to address this topic in an open‑ended study group. While low‑lying coastal States and small island developing States are particularly affected by this phenomenon, it has clear implications of a global nature, she noted.
MARIA ANGELA ABRERA PONCE (Philippines), speaking on “Immunity of State officials from foreign criminal jurisdiction”, said the sovereign equality of States and protection of State officials from politically motivated or abusive criminal jurisdiction must be balanced against the recognized need to combat impunity for international crimes. It is important that the draft articles be grounded on State practice from diverse regions, she said, noting with approval the inclusion of diplomatic channels as a procedure to be availed by parties in articles 10, 11 and 12. On the future programme of work, she said she was not inclined to support the proposal for the definition of a mechanism for the settlement of disputes between the forum State and the State of the official.
Regarding “Sea‑level rise in relation to international law”, she said it is important that the study group focus on emerging State practice and invite the comments of States. Given the technical nature of the phenomenon, the inputs of technical experts and scientists is also necessary, she emphasized, adding that more clarity was needed on the scope of the proposed study from the United Nations Secretariat.
ZACHARIE SERGE RAOUL NYANID (Cameroon), commenting on “Immunity of State officials from foreign criminal jurisdiction”, expressed interest in the current status of issues, including the time frame for the consideration of immunity; the definition of acts by State authorities covered by immunity; and identifying the body competent to decide when immunity will be lifted or waived. Immunity belongs to the State, which then cedes it to officials acting on its behalf. States are not subjects of the law in the way individuals are. In international public law, immunity from the jurisdiction of other States is a corollary of the principle of sovereign equality — a founding principle of the international legal order. This immunity for State officials has a well‑established customary nature and must be absolute. He decried attempts to progressively restrict this immunity and expressed hope that the “tide will be turned on this underhanded move”. He also underscored the need to uphold immunity for Heads of State, Heads of Government and Ministers for foreign affairs.
TOFIG MUSAYEV (Azerbaijan), on “Protection of the environment in relation to armed conflicts”, said that, according to the draft principles, the law of occupation applies equally to all occupations that fulfil the factual requirements of effective control of a foreign territory irrespective of whether the occupying Power invokes the legal regime of occupation and whether or not the occupation results from a use of force that is lawful in the sense of jus ad bellum. However, the distinct characteristics of the occupation should be taken into consideration while addressing the protection of the environment and property rights in an occupied territory, he stressed. It is wrong to suggest that the occupying Power should administer an occupied territory as a “trustee”, as that position postulates trust which is missing from the relations between belligerents in wartime. Further, exploitation of natural resources cannot be permitted to cover the expenses of the occupation, particularly where such occupation is a result of a serious breach, he stressed.
Mr. TAUFAN (Indonesia), speaking on “Protection of the environment in relation to armed conflicts”, stated that parties to armed conflict are under obligation to distinguish between civilian and military objects in order to mitigate the impact of such conflict on the environment. Regarding the draft principles’ use of the term “indigenous people”, he said that any reference thereto or any draft provisions intending to be expressive or creative in imposing both substantive and procedural duties or obligation under international law in relation to such people is only applicable to those States that fall under these provisions. For its part as a multicultural nation, Indonesia does not have a policy of clustering society based on such concepts or backgrounds. The Government instead recognizes the customary law community (masyarakat hukum adat).
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said there should be no impunity for grave international crimes. Regarding the draft articles, he called for further study and analysis thereof given the sensitivity and complexity of the issue. As this matter is interconnected with the principle of sovereign equality and the fight against impunity, while also implicating varied national legal systems, he called on the Commission to strike a balance in its work.
On “Sea‑level rise in relation to international law”, he said that Indonesia — along with certain countries, particularly island and archipelagic in nature — face serious challenges in this area. Based on a Government study, Indonesia is losing around 1,950 hectares annually in its coastal areas due to rising sea levels and unsustainable economic activities. Yet, there is no specific legal framework at the international level on this issue, he said, adding his support for the study group’s work.
ELENA A. MELIKBEKYAN (Russian Federation), on “Protection of the environment in relation to armed conflicts”, said that the draft principles are unjustifiably expanding the scope of the subject, adding her approval for the provisions to be in the form of “principles” rather than as a legally binding document. Stressing the importance of not mixing different branches of international law, she highlighted the first principle and its scope — before, during and after the armed conflict. As much as a fifth of the draft is entirely devoted to principles that are applicable after armed conflict. However, the periods before and after are considered peacetime when the general norms pertinent to the environment apply. Turning to draft principle 4, she said that it is inappropriate to apply the legal regime relevant to cultural heritage to environment. Further, it is not appropriate to use the term “protected zone”, since that term does not exist in international humanitarian law.
On “Immunity of State officials from foreign criminal jurisdiction”, she added that procedural questions play a fundamental role in the application of immunity. These include whether invocation of immunity is necessary; who can invoke it; and what are the consequences of withdrawing immunity for the exercise of jurisdiction. An analysis of these questions should be done independently with the aim of coming up with guidance for States. Highlighting draft article 7, she reaffirmed her delegation’s position that the existence of exceptions does not conform to State practice or opinio juris. It cannot be considered progressive development of law either, she stressed, highlighting the possibility of abuse for politically motivated prosecutions of foreign officials. Noting the large number of delegations disagreeing with the Commission on the draft articles, she called on it to consider the drafts more carefully and slowly.
TAREQ MD ARIFUL ISLAM (Bangladesh), on the topic “Protection of the environment in relation to armed conflicts”, thanked the Special Rapporteur for the proposed seven draft principles and the Commission for its adoption of 28 draft principles. However, he said it is important to keep in mind that they do not conflict with the obligations arising from other legal instruments and should not duplicate efforts that have already been undertaken by existing global regimes.
On the topic “Sea‑level rise in relation to international law”, he said the cost of that phenomenon is high for countries like Bangladesh which are extremely vulnerable to climate change. Sea‑level rise could cause the submersion of existing land and territories, thereby raising complex issues of sovereignty and access to natural resources. It is also expected to change the existing boundaries of maritime zones, with political, economic and security implications. Research shows that sea‑level rise is expected to inundate about 8.4 per cent of coastal areas in Bangladesh, with greater temperature rises further exacerbating those impacts. Indeed, he pointed out that just a 1˚C increase will result in massive human displacement — about 40 million people by the end of the century. Welcoming the Commission’s decision to begin an open‑ended study group on that issue, he requested Member States to provide it with any relevant information on Statehood and the protection of affected persons.
Turning to the topic “Immunity of State officials from foreign criminal jurisdiction”, he said the Commission should establish procedural safeguards to avoid the politicization and abuse of criminal jurisdiction in respect of foreign officials. “The Commission needs to strike a balance in its work between the principle of sovereign equality of States and the fight against impunity for the most serious international crimes,” he said.
ZAKIA IGHIL (Algeria), on “Protection of the environment in relation to armed conflicts”, said she supported the temporal three‑phase approach of an armed conflict — before, during, after — followed by the Commission. The focus of the draft principles on the question of the use of natural resources during occupation, corporate accountability for the exploitation of the environment, and State responsibility for environmental harm during armed conflicts is of a particular value. Draft principle 8, which outlines the clear link between human displacement and environmental degradation, should be viewed as establishing a burden‑sharing mechanism to help mitigate the environmental consequences of displacement. Commending that provision, she also welcomed the prohibition of pillage of natural resources in draft principle 18.
DAVIT KNYAZYAN (Armenia), in regards to “Protection of the environment in relation to armed conflicts”, said that enhancing the scope of the project should entail international human rights law. Protection of the environment is closely interlinked with the exercise of inalienable economic and social rights and free disposal of natural resources by the virtue of self-determination. The legally binding United Nations Covenant on Political and Civil Rights and the United Nations Covenant on Economic, Social and Cultural Rights maintain that in no case may people be deprived of their own means of subsistence. When addressing the issue of illegal exploitation of natural resources in conflict situations, the Special Rapporteur should have referred to the economic and social rights of the people residing in conflict areas. He also called attention to the attempt by certain States to reject social and economic rights of people, isolate them from the world and deprive them of their means of subsistence, which is one of the manifestations of impeding realization of their right to self‑determination.
BERNARDITO CLEOPAS AUZA, Permanent Observer for the Holy See, speaking on “Protection of the environment in relation to armed conflicts”, noted with appreciation the International Law Commission’s adoption of that topic’s draft principles. He called such work “timely and required”, citing Pope Francis’ concern over the damage to the planet caused by war. Noting estimates that at least 40 per cent of intra‑State conflicts can be associated with exploitation of resources, he stated: “We fight over the ever‑more scarce resources of our planet and exploit the same resources to continue our fights”.
On “Immunity of State officials from foreign criminal jurisdiction”, he said that there are some egregious criminal acts of international concern that never fall within the legitimate activities of a public official and which, therefore, should be excluded from any immunity. Cautioning that immunity should not be confused with impunity, he said that a viable way forward on this topic is to focus on the procedural issues that arise with immunity, inter alia, timing, invocation and waiver, all of which are important for an even-handed and transparent handling of immunity issues while protecting just sovereignty concerns.
Welcoming attention to “Sea‑level rise in relation to international law”, he stressed that more than a mere legal approach to the topic is required. An integrated ethical perspective is needed to highlight the real‑life consequences of rising sea levels. That approach could provide the international community with guidance on how to develop an appropriate legal response. Discussions of marine and coastal ecosystems must take into account the lives of the people who rely on them, since both flourish or deteriorate together. He highlighted the call of Pope Francis for an “integral ecology” which respects the human and social dimensions of nature. An ethical approach must also respect the rights and needs of future generations, requiring intergenerational solidarity.
CONCEPCIÓN ESCOBAR HERNÁNDEZ, Special Rapporteur for “Immunity of State officials from foreign criminal jurisdiction”, acknowledged the marked increase of interventions on the topic and said this shows great interest in this issue by Member States and the Sixth Committee. She said she will bear in mind every comment, suggestion and concern offered, particularly those relating to procedural guarantees. She also noted that a significant number of delegates were in favour of the Commission moving forward and called for the Commission to adopt the full set of articles in 2020. This was a clear message, she said.
PATRICIA GALVÃO TELES, Co‑Chair of the study group on “Sea‑level rise in relation to international law”, noted that this is the first time this topic is officially on the Commission’s agenda and thanked the Sixth Committee for its interest and support. This is not the first time the Commission has decided to work in the format of a study group, she said, highlighting the expressed support for this format due to the interdisciplinary nature of the topic and the group’s inclusion of members from different regions of the world.
Statements on Cluster III
ODD INGE KVALHEIM (Norway), speaking for Denmark, Finland, Iceland and Sweden, and commenting on “Succession of States in respect of State responsibility”, observed that the commentaries included with the draft articles adopted by the Commission increased transparency. Particularly useful was the definition of “succession of States”, which is not seen as implying automatic transfer or automatic extinction of responsibility. The new proposal to organize the draft articles in parts was sensible, the scopes of which are indicated. He also welcomed the clarification that only internationally wrongful acts fall within the ambit of the draft articles. Concerning the so‑called “passive” aspect of State responsibility, he saw merit in analysing the possible transfer of rights separately from obligations, he said, adding that it also made sense to divide in two the categories of succession, depending on whether the predecessor State continues to exist. On the use of the formulation “may request reparation”, the formulation seems logical given the approach of the Special Rapporteur in which he did not propose automatic succession to rights and obligations arising from wrongful acts. Surveying draft articles 7, 8 and 9, he encouraged the Commission to continue to follow a prudent approach, given the rarity of State succession.
Turning to “General principles of law”, he agreed with the Special Rapporteur on the need for a cautious and rigorous approach, adding that the Commission’s work on the topic could be particularly useful in terms of providing guidance to courts on how to identify and apply general principles of law, given the sensitivities involved. Taking note of the alternative formulations of the unfortunate reference to “civilized nations”, he said another question to be explored further is the place of statements and resolutions of intergovernmental organizations in identifying general principles of law. The difficult delineation of general principles from customary international law will also have to be assessed further. He added his agreement regarding the possibility of general principles of law emanating from sources other than national legal systems. However, the importance of information from States on their practice relating to general principles cannot be overemphasized, he said.
LAURA KATHOLNIG (Austria), speaking on the “Succession of States in respect of State responsibility”, noted with regret that the suggested draft articles under the title “Reparation for injury resulting from internationally wrongful acts committed against the predecessor State” were not discussed in the Drafting Committee and only received general comments by members of the Commission. Matters concerning succession or, more specifically, the legal consequences stemming from international wrongful acts, are fundamentally different from issues concerning succession to treaties, assets and debts. “We do not think that any rule claiming that there is an automatic transfer of rights and obligations to successor States where the predecessor State does not continue to exist can be identified as lex lata, nor do we consider that it would be a good candidate for progressive development of law,” she added. If embarking on this issue at all, the Commission should have focused on analysing specific problems arising in practice regarding the non‑implementation of obligations stemming from treaties and judgments relating to a predecessor state.
On the “General principles of law”, she said that different views have been offered on the meaning of the “source” of international law, suggesting that the will or consent of the rule‑makers, mostly States, could have also been seen as a source of international law. A draft conclusion that does not refer to the term “source” would have been more favoured, with wording such as: “The present draft conclusions concern general principles of law as norms of international law.” Concerning the methodology of identifying general principles of law, such principles are primarily to be derived from national legal systems. General principles of law formed within the international legal system come only into existence if they are specifically accepted as general principles of law by the international community. It is also necessary to draw a clear terminological distinction in the draft conclusions and the commentary between “principles of international law” belonging to customary international law and “general principles of law” formed within the international legal system.
RUSLAN VARANKOV (Belarus) observed that the subject of “Succession of States in respect of State responsibility” is a specific and sensitive one. Generally speaking, questions of succession of responsibility have been resolved on an ad hoc basis. He said he supported the leading role of agreements between the States in question and a subsidiary or model role for the draft articles. Future work on these articles should result in guidelines for practice, rather than a treaty, as experience shows that achieving international treaties on fundamental questions of general international law is unlikely.
On “General principles of law,” he said consideration of this subject is promising, as it has not been previously studied in a systematic fashion despite existing judicial practice and doctrine in this area. He said that the three draft conclusions presented by the Special Rapporteur are all acceptable and that, at a certain stage of work on this topic, it would be useful to produce an indicative list of general principles of law. On this, he suggested borrowing from the Commission’s work on peremptory norms of general international law.
MIATTA MARIA SAMBA (Sierra Leone), on “Succession of States in respect of State responsibility”, said there were several questions left open, including where a succession of States occurs after the commission of an internationally wrongful act. Expressing doubt as to the sufficiency of State practice to guide that topic — especially given that succession solutions tend to be political, diverse and context‑specific — she said the study could still complement the Commission’s earlier work on succession in respect of treaties, State property, archives and debts, and nationality of natural persons. She also noted her agreement that the articles should only apply to the legal effects of a succession in respect of responsibility for internationally wrongful acts. States must necessarily enjoy a wide margin of discretion in that area and may consent to exclude ordinary rules of responsibility to arrive at a mutually agreed solution. With possible expansion of the commentary to draft article 1, and to furnish examples, she said pacific means of dispute settlement could include: enquiry; mediation; conciliation; arbitration; judicial settlement; and resort to regional agencies or arrangements or others of the parties’ choice. She also voiced general support for the Special Rapporteur’s flexible approach to the rule of non‑succession but said her delegation will not yet adopt a firm position thereon.
Turning to “General principles of law”, she said the Commission could provide useful illustrations of widely accepted principles of law derived from national or international systems. However, drawing up a list of substantive general principles would be unsound and could take many years — if not decades — to complete. Article 21 of the 1998 Statute of the International Criminal Court directs the Court to apply general principles of law derived from national laws around the world — including, the laws of those States that would normally exercise jurisdiction over the crime, provided they are not inconsistent with the Court’s statute and internationally recognized norms and standards. Such a reliance on general principles of criminal law in case adjudication is extensively reflected in case law, she said, noting that the situation was somewhat similar in the Special Court for Sierra Leone. The Commission should go even further so that it might complete its work on sources of international law in article 38 of the International Court of Justice Statute.
METOD ŠPAČEK (Slovakia), on “Succession of States in respect of State responsibility”, said he was convinced that consideration of the topic could help clarify rules governing the legal consequences of internationally wrongful acts predating State succession. This would be the rights and obligations relating to reparation, which have not been fully implemented before the date of State succession. Draft article 1, paragraph 1 correctly reflects the scope of the future draft articles and, as noted last year, paragraph 2 is redundant. He also said he supported the proposed organization of future draft articles into three parts, as well as the proposed titles of part II and part III. Commenting on the proposed draft article 15 on diplomatic protection, he said he agreed that an exception to the principle of continuous nationality in cases of succession of States would be considered. This would avoid situations in which an individual lacked protection. However, it was very important to maintain consistency with the articles on diplomatic protection.
Turning to the “General principles of law”, he pointed out that article 38(1)c of the Statute of the International Court of Justice should draw the trajectory in approaching the general principles. While sharing the Special Rapporteur’s view on the essential role of the general principles of international law, he said he did not expect them to be considered within this topic’s scope. Those principles have been codified within General Assembly resolution 2625 — the Declaration of Principles concerning the Friendly Relations between States — and they form either customary law or are embodied in treaties. Broadening the topic’s scope to principles of international law may be redundant, divert attention and risk overburdening the final outcome. He added his support to the naming of the principles recognized generally in foro domestico, preferably in the form of an illustrative list rather than a mere inclusion of their examples in the commentaries.
Mr. CARRE (France), speaking on “General principles of law”, said that it would be a useful exercise to reflect on the form the Commission’s work on this topic will take over the next three years. He also called on the Commission to account for the multiplicity of legal systems around the world. As general principles of law are drawn from national law, it is incomprehensible for the Commission to account for only certain legal systems while excluding others, citing difficulty of access as an excuse.
He stated that the two new subjects added to the Commission’s long‑term program of work — “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law” and “Prevention and repression of piracy and armed robbery at sea” — are of great interest to the codification and progressive development of international law. The Commission should review its working methods, however, to ensure that States have enough time to comment on the topics on its agenda. This will improve the quality of the dialogue between States and the Commission, which is a cornerstone of the smooth functioning of said body.
Mrs. PINO RIVERO (Cuba), on “Succession of States in respect to State responsibility”, said it was important to establish a general underlying rule to which the latter is not automatically transferred to the successor State, except in certain circumstances. It is necessary to study the issues regarding responsibility, taking into account each specific type of succession. The Commission should clarify whether lex data or lex ferenda is being established in these draft articles. Further, she said it is too early to make a decision on the final form of the Commission’s work. A decision could be made at a subsequent stage as the topic evolves.
The “General principles of law” is the only source of law that has not been discussed by the Commission, she said, adding that its examination is the next logical step, following the Commission’s work on the law of treaties, customary international law and jus cogens. The Special Rapporteur’s report can help lay a foundation for the Commission’s future work and provide a broad overview of the three main sources of international law. She also welcomed the replacing of the term “civilized nations”, which has a colonialist connotation and does not fit in the current system of international relations, based on the sovereign equality among States. Turning to an issue of particular importance to her country, she said it would be a mistake to establish the concept of the “responsibility to protect” as a general principle of law. This “responsibility” is far from becoming a principle of international law and is only a concept whose characteristics, rules of application and evaluation mechanisms are far from being defined and agreed upon. It is inappropriate to delve further into the concept without there being a consensus on its scope, purposes and implications.
ANNE-MARIE O’SULLIVAN (Ireland) said the topic, “General principles of law”, complements the Commission’s work in other sources of international law, such as the identification of customary international law, as well as its work on peremptory norms of general international law (jus cogens). It will be necessary to consider the relationship between general principles of law and other sources of international law. Careful attention must be paid to the distinction between general principles of law and customary international law. The Commission should ensure this is clearly reflected in the draft conclusions and commentary. She also said she agreed that the starting point for consideration of this matter is article 8, paragraph 1(c) of the Statute of the International Court of Justice. As well, she added her support to the view of the Special Rapporteur and Commission members that the term “civilized nations” used in the provision is now inappropriate and outdated. This phrase should not be used in the present draft conclusions.
LISELOT FRANCESCA EGMOND (Netherlands), commenting on “Succession of States in respect of State responsibility”, said that any work on the topic must preserve the integrity of, and be consistent with, existing arrangements relating to the topic of State succession and State responsibility. The report describes both areas of law in a way that is not fully consistent with the Commission’s work in these areas. Noting the Special Rapporteur’s exclusion of both the automatic extinction and the automatic transfer of responsibility in case of succession of States, she said this is the most logical approach, as any subsidiary rules must be flexible enough to allow for tailor‑made solutions in specific situations. She also observed that the Rapporteur based the majority of the report on academic literature, which is a subsidiary means for determining international law that should not be afforded greater importance than sources that reflect customary international law. She urged the Rapporteur and Commission to conduct a more thorough investigation into existing State practice and opinio juris.
Turning to “General principles of law”, she said that these principles are not subsidiary sources of international law, but rather have a supplementary function. This suggests that States can be responsible for an internationally wrongful act when acting contrary to an obligation arising from a general principle. She called for further inquiry into the question of whether general principles of law can be violated. She also commended the formulation of two categories of general principles of law as reflected in draft conclusion 3, namely, general principles of law derived from national legal systems and those formed within the international legal system.