25TH MEETING (PM)
Acknowledging States’ Concerns on Peremptory Norms, Special Rapporteur Says Jus Cogens ‘Is a Weapon of the Weak’ Against Abuses by Powerful, Privileged
As the Sixth Committee (Legal) concluded Cluster 1 from the International Law Commission’s report, delegates weighed in on the draft conclusions, “Protection of the environment in relations to armed conflict”, commending the work accomplished on the topic and providing additional suggestions of provisions that could be included in the texts. (For background, see Press Release GA/L/3670.)
The representative of Lebanon, highlighting the effects of a military presence and military activities of an occupying force on the environment, pointed out that some of these effects may not become visible or clear until the occupation has ended. Provisions related to responsibilities following occupation should be included. He also outlined the possible inclusion of a reference to self-determination and the use of natural resources by the protected population in the occupied territory.
Croatia’s representative, describing the draft principles as an excellent development, noted that they offer a systemic overview of rules protecting the environment in armed conflict. As a State that has experienced the devastating effects of armed conflict in its recent history, Croatia has closely followed the work of the Commission, she said, underscoring that the events of the past year have also highlighted the topic’s importance and contemporary nature.
The representative of Uganda, welcoming the promotion of the necessary measures in the areas of environmental prevention, conversation and restoration, called for the strengthening of existing instruments to ensure that victims receive reparations. The development of such a framework of principles must draw from the main legal systems of the world, including African customary law, he said.
The delegate of Argentina pointed out that there is one environment that must be protected. Thus, there should be no discrimination on protection given to some areas and not others in that same State. Prudence must be exercised as some States refer to rules or arrangements as binding instruments, issues that should be left to the States themselves.
Marja Lehto, Special Rapporteur on “Protection of the environment in relation to armed conflicts” noted that the debate on this topic is an important part of the institutional dialogue between the International Law Commission and the Sixth Committee. Recognizing that the draft principles were generally well-received among delegations, she said that they represent a collegial undertaking by the members of the Commission, building on its previous work.
On the topic of “Peremptory norms of general international law (jus cogens)”, speakers offered a wide range of comments, including specific comprehensive examples of the related draft conclusions that contain certain shortcomings, omissions or ambiguities.
The representative of Türkiye pointed out that certain comments from his delegation were not taken into consideration, adding that they should have insisted on jus cogens not being included into the Commission’s programme of work due to certain misgivings about its progressive development and the ambiguous scope and criteria of interpretation of the concept. He also noted that silence or inaction by relevant States cannot be taken as evidence of acceptance and recognition.
In a similar vein, Japan’s representative also highlighted substantial concerns of his country that have not been addressed. He recalled the doubts, reservations and objections of other Member States to the inclusion of a non-exhaustive list of jus cogens and expressed concern that the list was not drafted based on reason and evidence.
The representative of France, expressing his reservation over linguistic irregularity in draft conclusion 14, also pointed out that a potential misinterpretation of draft conclusion 6 could be perceived as to allowing a State to unilaterally withdraw from Security Council resolutions that contravenes a peremptory norm. He stressed that such interpretation risks undermining the authority of Council resolutions.
As well, the representative of Bulgaria detailed her consideration of several draft conclusions, which include language with too broad of an interpretation. Touching upon the non-exhaustive list of norms, listed in annex to draft conclusion 23, she highlighted the need of a further detailed analysis.
Dire D. Tladi (South Africa), Chair, International Law Commission and Special Rapporteur on “Peremptory norms of general international law (jus cogens)” assured the Committee that the Commission had worked to accommodate and address Member States’ concern. The dialogue between the Commission and the Member States should be reciprocal. The Commission must take into account the observations of States, whereas States are expected to respond directly to the explanations of the Commission. This is rarely the case, he noted.
He also recalled that the non-exhaustive list of norms constitutes a list of norms previously identified by the Commission as jus cogens status. Expressing hope that the Sixth Committee would be able to act on the recommendation made, he recalled an old adage: “Jus cogens is a weapon of the weak and the disenfranchised against the abuses of the powerful and the privileged.”
Also speaking were representatives of Algeria, Nigeria and New Zealand, along with observers for the International Committee of the Red Cross (ICRC), Holy See, State of Palestine and the Council of Europe.
The representatives of Cyprus, Türkiye and Israel spoke in exercise of the right of reply.
The Sixth Committee will next meet at 10 a.m. on Friday, 28 October, to commence its consideration of Cluster 2 of topics from the International Law Commission’s report on the work of its seventy-third session and hear a presentation by the President of the International Court of Justice.
Statements on Cluster 1
MARVIN IKONDERE (Uganda), associating himself with the African Group, said that in light of the impact of the COVID19 pandemic, he highlighted the opportunity for the Sixth Committee and the International Law Commission to engage. Among other comments, he noted that the Commission continues to fulfil its mandate, in spite of the constraints it has to contend with. He also encouraged the Commission to develop cooperative relationships with regional international law commissions such as the African Union Commission on International law.
Turning to the “Protection of the environment during armed conflict”, he called for the strengthening of existing instruments to ensure that victims receive reparations. Necessary measures in the areas of environmental prevention, conversation and restoration must also be promoted in the context of hostilities. The development of such a framework of principles must draw from the main legal systems of the world, including African customary law, he emphasized.
On “Other decisions and conclusions of the Commission”, he welcomed the inclusion of the topic “Prevention and repression of piracy and armed robbery at sea” and “Subsidiary means for the determination of rules of international law”. Topics must have an added value and be of interest and relevance to the international community, he noted.
DIMANA DRAMOVA (Bulgaria), on “Peremptory norms of general international law (jus cogens)”, recognized that the draft conclusions make a clear distinction between jus cogens as an accepted doctrine in international law, the rules of customary international law and obligations created by unilateral acts. She pointed out that the formulation of the term “other actors” in conclusions 7 and 5 needs to be subject to further careful consideration in light of its content, sources and role in its assessment for the purpose of acceptance by States. Turning to conclusion 9, she emphasized that the use of national courts practice should be precisely defined to avoid any confusion in the assessment of jus cogens norms. In this respect, she called for a deeper focus on the use of the reference to “caution”, which provides for too broad of an interpretation as of which “expert bodies” or “most highly qualified publicists” can be used for determining the peremptory character of norms. With regard to the illustrative list of norms, she underscored the need of a further detailed analysis and careful consideration.
Mr. MAEDA (Japan), in noting the inclusion of the topics “Reparations to individuals for gross violations of international human rights law”, “Serious violations of international humanitarian law”, “Prevention and repression of piracy and armed robbery at sea” and “Non-legally binding international agreements”, expressed concern over the Commission’s workload. The Commission must fully take into account Member States’ views and focus on topics of pressing concern to the international community. Since States and international courts often refer to the Commission’s outputs, Member States must also have sufficient time to thoroughly examine the Commission’s work.
On “Peremptory norms of general international law”, he highlighted the substantial concerns which have not been addressed. In acknowledging the doubts, reservations and objections of other Member States to the inclusion of a non-exhaustive list of jus cogens in draft conclusion 23 and the annex, he expressed concern that the list was not drafted based on reason and evidence. On paragraph 1 of draft conclusion 19 concerning the consequences of serious breaches of other peremptory norms, he said he agreed with the responsibility of States to cooperate within their capacities to end the aggression.
Regarding the “Protection of the environment in relation to armed conflicts”, he highlighted its relevance within the context of the Russian Federation’s war of aggression against Ukraine. The seizure of Ukrainian nuclear power facilities as well as other actions by the Russian Federation’s armed forces pose a serious threat to the safety and security of those facilities, risk nuclear incidents and endanger the population of Ukraine and neighbouring States, as well as the international community and the environment. While it is beneficial to focus on the protection of the environment during — as opposed to before or after — an armed conflict, he nevertheless supported the dissemination of the draft principles.
MOHAMED FAIZ BOUCHEDOUB (Algeria), aligning himself with the African Group and speaking on “Peremptory norms of general international law (jus cogens)”, welcomed draft conclusion 23 on the right to self-determination. He urged the Commission, however, to provide clarification regarding the same, as the current explanation is vague and “does not produce the sought-after results”. The Commission should include relevant legal opinions stating that the right to self-determination is a peremptory norm of international law, particularly the decision of the African Court on Human and Peoples’ Rights in the case of Bernard Anbataayela Mornah v. Republic of Benin et al. In that decision, the Court held that States must guarantee the conditions necessary for peoples to enjoy the right of self-determination. It also affirmed that all parties must avoid recognizing situations of occupation, and that all member States of the African Union must work to find a lasting solution to occupation and guarantee peoples’ right to self-determination.
On “Protection of the environment in relation to armed conflicts”, he noted that few legal instruments govern this area, and those that do are not sufficiently binding and lack harmony at the international level. As these instruments are not sufficient to protect the environment in cases of armed conflict, further work is required in this area. Welcoming the Commission’s work in gradually developing and codifying international law, he urged that body to continue considering matters pertaining to the environment at the international level. He also expressed support for the draft principles pertaining to occupation in this context, stressing that the international community must prevent the diversion of resources from occupied territories, including by multinational enterprises. This will ensure that occupied peoples and territories — that do not belong to any State — can carry out their right to development. Additionally, he reaffirmed the need for the draft principles to contain certain precautionary measures against trade and economic activity in occupied territories when such activity affects the environment.
Turning to “Other decisions and conclusions of the Commission”, he voiced his support for the body’s decision to include new topics in its programme of work, including “Settlement of international disputes to which international organizations are parties” and “Prevention and repression of piracy and armed robbery at sea”. He also encouraged relevant working groups to duly reflect State practice and the most recent developments in international law.
Mr. MARTINSEN (Argentina), regarding “Peremptory norms of general international law (jus cogens)”, hailed the importance of the Commission’s work on the draft conclusions relating to jus cogens. As to proof of the acceptance of States, draft conclusions 8 and 9 are useful in clarifying the acts by States which could be manifestations of their opinion on public declarations. However, statements by State bodies whose competence does not cover external relations should be evaluated very cautiously to determine whether they do reflect the States’ position to which those bodies belong. He also noted that the draft conclusions by the Commission very precisely build on what is set out in articles 44, 53, 64, 65, 66 and 71 of the Vienna Convention on the Law of Treaties.
On “Protection of the environment during armed conflict”, he welcomed the intense work of the Commission, noting that until 1976, the natural environment was not specifically protected by international humanitarian law. The 27 principles which govern the draft do include international law, and some principles address the responsibility of State and non-State actors on protection of the environment. He emphasized that there is one environment that must be protected, and therefore there should be no discrimination on protection given to some areas and not others in that same State. Prudence must be exercised as some States refer to rules or arrangements as binding instruments, issues that should be left to the States themselves.
GORDANA VIDOVIĆ MESAREK (Croatia), addressing the “Protection of the environment in relation to armed conflict”, encouraged the General Assembly to note the draft principles in a resolution and facilitate their widest possible dissemination. The draft principles are in line with existing rules of international law, are an excellent development in the field and provide an excellent and systemic overview of applicable rules. As a State that has experienced the devastating effects of armed conflict in its recent history, Croatia has closely followed the work of the Commission. The events of the past year have also highlighted the topic’s importance and contemporary nature, she said.
On “Peremptory norms of general international law”, she commended the Commission’s work on the topic and the adoption of the draft conclusions and annex together with the commentaries. She also welcomed the Special Rapporteur’s proposal to include a draft conclusion referring to a non-exhaustive list of jus cogens norms in the annex to the draft conclusions that was accepted by the Commission.
Turning to “Sea-level rise in relation to international law” and associating herself with the statement to be made by the European Union, she said that a State would transform into another entity if it lost its territory — and by extension statehood — due to a sea level rise. In this regard, the Commission should explore alternatives by establishing new forms of “international legal personality without a territory”. On the law of the sea, she underlined the fixed nature of baselines. As national maritime zones cannot change once they have been established, the Commission must guarantee respect for and the integrity of the 1982 United Nations Convention on the Law of the Sea. She also encouraged the Commission to clarify how and where an affected population could exercise its right to self-determination. The Commission must undertake a cautious approach as State practice and opinio juris are non-existent.
Ms. DAKWAK (Nigeria), associating herself with the African Group and speaking on “Peremptory norms of general international law (jus cogens)”, said that peremptory norms should be put in accordance with the general principles of international law, universally accepted and recognized across legal systems.
Turning to “Protection of the environment in relation to armed conflicts”, she underscored the importance of cross-cutting topics and acknowledged the extensive efforts towards the adoption of the principles. On principle 3, she outlined the measures to enhance the protection of the environment in armed conflicts, which require States to take effective legislative, administrative, judicial and other actions. She spotlighted principle 8 that addresses human displacement and outlines that States and relevant stakeholders should take appropriate measures to prevent, mitigate and remediate harm to the environment in areas where persons displaced by armed conflicts are located. Including the topic was important, particularly at a time “when the world is faced with the disruptive challenges of climate change and its consequences on the environment”, she said, adding that the devastating impact on the environment is massive.
Nigeria will continue to support the work of the Commission, she went on to say, urging the Commission to continue to deepen its collaboration with Member States and regional organizations on the relevant topics. She further highlighted the ample opportunity for Nigeria and Africa to play an important role in the formulation of international law and norms that reflect African perspectives. In this regard, she reiterated the need to continue reflecting African customary law, taking note of the diversity of the legal system of the region in the next session of the Commission.
Mr. COLAS (France), on “Peremptory norms of general international law (jus cogens)”, welcomed the clarification in draft conclusion 21 that the provisions therein are recommendatory procedures that are not intended to establish obligations. However, the explanation provided in draft conclusion 14 pertaining to the possibility that a rule of customary international law could conflict with a peremptory norm was not convincing. The existence of a conflict necessarily presupposes that the norms in conflict exist; if one does not exist, no conflict is possible. As such, he expressed reservation over the wording of the draft conclusion, also noting that the French-language version of the first paragraph of the same contains errors that obscure its meaning. Draft conclusion 6 could be interpreted to allow a State to unilaterally withdraw from Security Council resolutions, adopted under Chapter VII of the Charter of the United Nations, that contravene a peremptory norm. Such an interpretation risks undermining the authority of Council resolutions, he stressed.
On “Protection of the environment in relation to armed conflicts”, he welcomed the draft principles’ contribution to protecting the environment, while pointing out that such principles are not intended to modify international humanitarian law. He also welcomed that the Commission accounted for comments and observations made by France and other States, particularly in its clarification that draft principle 13, on the general protection of the environment during armed conflict, does not reflect customary international law. However, he expressed regret that the Commission did not adequately address other concerns raised by France and other States and, with few exceptions, did not specify which of the draft principles reflect customary international law and which are more recommendatory in nature. He expressed particular concern that draft principle 9, concerning State responsibility, could be interpreted as giving rise to State responsibility for environmental damage caused in an armed conflict that complies with international humanitarian law and international law governing the use of force.
On “Other decisions and conclusions of the Commission”, he noted the inclusion in the Commission’s programme of work “Settlement of international disputes to which international organizations are parties”, “Prevention and repression of piracy and armed robbery at sea” and “Subsidiary means for the determination of rules of international law”. Further, the inclusion of “Non-legally binding international agreements” in the Commission’s long-term programme of work is welcomed, as work on this subject could be useful to State legal advisers who, in daily practice, are confronted with the uncertain legal scope of these instruments.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he noted that such immunity emanates from the principle of sovereign equality, which is at the heart of international law. Immunities, however, do not exonerate their beneficiaries from all criminal responsibility, and are “not synonymous with impunity”, he stressed. Nonetheless, some of the draft articles remain subject to debate; there must be consensus within the Sixth Committee regarding the same if States are to adhere to them. There is also no indication as to which draft articles codify international law and which constitute progressive development in this area. He added that certain draft articles containing procedural considerations raise questions as to their impact on domestic law governing criminal procedure.
On “Sea-level rise in relation to international law”, he underlined the importance of this issue for many States — including France — and welcomed the quality of the Commission’s reports on this topic. This subject must be dealt with in a transparent, global and inclusive manner, and in a way that accounts for concerns expressed by States. Further, any work in this area must recognize the fundamental character of the United Nations Convention on the Law of the Sea. Taking issue with the Commission’s relating of certain situations involving sea level rise to those involving the right to self-determination, he urged the Commission to distinguish between the codification of international law and the progressive development of the same throughout its work. He added that, despite the urgent nature of this issue, the Commission must accord it the necessary time for consideration.
Mr. KAPUCU (Türkiye), speaking on “Peremptory norms of general international law (jus cogens)”, said there is not sufficient State practice to work on the subject. Further, certain comments by his delegation were not taken into consideration. Türkiye is not a party to the Vienna Convention on the Law of Treaties, and at the time, his delegation had expressed concern that the non-definition in the Convention meant the term could be interpreted by States to serve their own needs. This is what has happened. While addressing the binding effect of usage of rules in draft conclusion 17, it was asserted that the Convention has a legally binding effect on non-parties. However, this does not have a legally binding effect on his country. He said that his delegation should have insisted that Türkiye continues to have misgivings about the progressive development of jus cogens; it had questioned from the outset the need for the Commission to include the topic in its programme of work. In addition, the scope and criteria of interpretation of jus cogens are ambiguous, and the phrase “fundamental values of the international community” could add even more ambiguity and controversy. The silence or inaction by relevant States cannot be taken as evidence of acceptance and recognition, he stressed.
Turning to “Protection of the environment during armed conflict”, he upheld previous concerns over broadening the judgment of a judicial organ on a specific area to other fields. In regard to the sources cited by the Commission, he emphasized that draft articles on the responsibilities of States for internationally wrongful acts are legally non-binding. He noted that his delegation’s concerns were not adequately reflected in the work, unlike in the case of other States.
On “Other decisions of the Commission”, among other comments, he welcomed the inclusion of “Prevention and repression of piracy and armed robbery at sea”.
Mr. HITTI (Lebanon) proposed that the International Law Commission develop an executive summary of the annual report, as well as consider holding a virtual information meeting with Special Rapporteurs and Sixth Committee Member States a few months before the report is published. He also suggested that the number of subjects for discussion be maintained within the capacity of States considering them. He reiterated the importance of continuing to promote greater geographical diversity and more gender parity in the appointment of Special Rapporteurs.
Turning to “Peremptory norms of general international law (jus cogens)”, he underscored the relevance of the inclusion of the non-exhaustive list. He further welcomed the inclusion of the reference to international humanitarian law on prohibiting racial discrimination and apartheid, and on the right to self-determination.
On “Protection of the environment in relation to armed conflicts”, he commended the consistent approach taken with regard to the time phases of before, after and during an armed conflict, including in situations of occupation. Draft principle 9 was also important, as it provides for the obligation of fully repairing the damage caused, including damage to the environment. In addition, draft principle 19 is crucial, particularly with regard to the effects of a military presence and military activities of an occupying force on the environment. He pointed out that some of these effects may not become visible or clear until the occupation has ended. Therefore, it would have been useful to include provisions related to responsibilities following occupation by the occupying forces. A reference to self-determination and the use of natural resources by the protected population in the occupied territory could have been included in principle 20, whereas principle 23 could have specified the type of information referred.
ZOE RUSSELL (New Zealand), on “Peremptory norms of general international law (jus cogens)”, stressed that the identification of such norms and the legal consequences resulting therefrom are of paramount importance to the international rules-based system. This is particularly demonstrated by the Russian Federation’s ongoing war in Ukraine, which violates the peremptory norm prohibiting aggression. She welcomed the inclusion of draft conclusion 19, relating to the consequences of serious breaches of such norms. This conclusion emphasizes the importance of the responsibility to cooperate to lawfully end such breaches, and of the obligations not to recognize situations created thereby as lawful nor render aid or assistance to the maintenance of such situations. She added that it is helpful that the draft conclusions follow the formulation of the draft articles on State responsibility where appropriate.
Turning to “Protection of the environment in relation to armed conflicts”, she said the draft principles on this topic are timely and important, as the environmental consequences of armed conflicts can exacerbate environmental challenges such as climate change and biodiversity loss. She welcomed that the draft principles draw from existing international environmental law and international human rights principles to address the lacunae in this area. In this regard, she spotlighted draft principle 5, which addresses the protection of the environment of indigenous peoples and the participation of the same in the question of remedial measures. Attacks on the environment are prohibited under national law governing armed conflict. Further, the obligations under which New Zealand operates in international armed conflicts also apply to non-international armed conflicts as a matter of policy, she said.
GABRIELE CACCIA, Permanent Observer of the Holy See, on “Peremptory norms of general international law (jus cogens)”, noted that his delegation was an early supporter of the development of the concept of *jus cogens. *At the same time, there was an urgent need to develop some rules of interpretation to assist States in delineating the specific content of peremptory norms, even without enumerating them one by one. He noted, however, that the Commission’s conclusions are in essence secondary norms of international law and that they do not provide any guidance on the specific content of jus cogens norms. As noted by the Commission, that concept presupposes an international community founded on common values, an international public order based not on raw power but on moral values shared by all in light of common human nature. Unfortunately, transposing such high aspirations into positive law presents an interesting contradiction, he said, questioning how it is possible to harmonize conclusion 2 with conclusions 7 and 8. The majority rule in conclusion 7 requires further consideration in defining what a majority of States is.
Turning to “Protection of the environment during armed conflict”, he observed that current international humanitarian law addresses the topic only marginally. This is not a surprise, as given the nature of conflict, humanitarian needs of civilians, displaced persons and other non-combatants must always take precedence over protecting the environment. Environmental concerns should not prevent or delay the provision of relief in emergency situations. He called for further reflection by States but voiced his support for the Commission’s proposal that the text be brought to the attention of all States.
LOUREEN O. A. SAYEJ, observer for the State of Palestine, on “Protection of the environment in relation to armed conflict”, said that the draft principles are the most recent examination of the law of occupation since the 1977 Additional Protocols to the Geneva Conventions. However, they do not always directly address modern challenges, including prolonged occupations and the exploitation of natural resources as a tool of warfare and oppression. Draft principle 20 consolidates modern interpretations of the “usufruct” principle, regarding the obligation of the occupying Power to temporarily administer natural resources for the benefit of the protected population of the occupied territory. Though alluded to, the right to self-determination and permanent sovereignty over natural resources of people under foreign occupations and racist regimes are cardinal principles in international law, including under principle 23 of the Rio Declaration on Environment and Development. Draft principle 10 and draft principle 11 are an important step in recognizing that the most egregious environmental harms caused during belligerent occupation are by corporations for substantial commercial gains. Draft principle 16 is particularly important for the State of Palestine, as it restates the prohibition of pillage from Additional Protocol I and existing rules of the law of armed conflict.
Turning to “Peremptory norms of general international law (*jus *cogens)”, she welcomed the draft conclusions on the identification and legal consequences of peremptory norms. Jus cogens are legal norms, not political ones, and politicization of the process, if entertained, will have negative and irreversible implications on the unified international legal order. She reiterated the most important attribute of jus cogens norms: they are binding even on their objectors. She urged States to respect and uphold peremptory norms and punish their violators.
BRADY MABE, International Committee of the Red Cross (ICRC), speaking on “Protection of the environment in relation to armed conflicts”, observed that the natural environment is frequently damaged by warring parties, which affects the well-being, health and survival of dependent communities. Therefore, there is a need to clarify and strengthen the legal framework applicable to conflict-related environmental harm, and the draft principles are a historic contribution in this regard. Noting that the draft principles are complementary to ICRC efforts to enhance respect for international humanitarian law, he also pointed out that they address important legal issues beyond the scope of such law. The draft principles should not be interpreted as restricting or impairing applicable rules of international law, he added, recalling the Special Rapporteur’s statement that the Commission has no intention — and is not in the position — to change the law of armed conflict. Detailing the draft principles’ interaction with international humanitarian law, he noted that the commentaries thereto reiterate the environment’s “inherently civilian nature”.
ANA GÓMEZ HEREDERO, representative of the Council of Europe, speaking on “Other decisions and conclusions of the Commission”, welcomed inclusion of the topic “Non-legally binding international agreements” in the long-term programme of work. Following an expert workshop on “The practice of States and international organisations regarding non-legally binding agreements”, the Council of Europe’s Committee of Legal Advisers on Public International Law decided to follow-up on the topic as one of its new activities. A detailed questionnaire was submitted to delegations and has so far received around 20 replies. The outcome of the study could be of interest for the Commission once it turns to the topic. The Committee of Legal Advisers is also working on a different but related subject topic, that of treaties not requiring parliamentary approval.
Another topic that, in the future, will be common to the work programmes of the Commission and the Committee of Legal Advisers, is “Settlement of international disputes to which international organizations are parties”, which the Commission decided to include in its programme of work. This topic has been on the agenda of the Council of Europe’s Committee since 2014. Here, too, there is a questionnaire, with replies analysed for the first time in 2017. She welcomed new and updated replies on an ongoing basis. Moreover, in 2020, an additional working document on “Settlement of disputes of a private character against international intergovernmental organisations: the experience of the Council of Europe and other Organisations” was prepared following an initiative of the delegations of the Netherlands, she said.
DIRE TLADI, Chair, International Law Commission and Special Rapporteur on “Peremptory norms of general international law (jus cogens)” thanked Member States for their comments during their deliberation of Cluster I. He emphasized that he listened to “every minute of this cluster”, adding that, despite the time difference, he stayed up until midnight, as he valued hearing the views of the delegations on the topic. The Commission has strived to consider, address, and where possible, respond through modifications to many of the comments made by States. Only one delegation suggested that the Commission had not made a valiant attempt to be responsive and some others remained unsatisfied. Responding to the delegate of France, he agreed with the dialogue, but said that it needs to be reciprocal. The Commission must take into account the observations of States, whereas States are expected to respond directly to the explanations of the Commission. This is rarely the case, he lamented.
He also said that the comments made by the delegate of Türkiye with regard of the report are “simply incorrect” and rather reflect a misunderstanding. Referring to the comments made by the delegation of Armenia, he said that their concern goes much deeper than the responsiveness of the Commission, as it suggested that the Commission ought to have based the work on natural law. In this regard, he said that if such an approach had been adopted, it would have been rejected by all States; many States, on the contrary, appreciated the framework within the Vienna Convention. Addressing that delegation, which persisted that the draft conclusions are based on “theory and judiciary decisions”, he said that was “incorrect”, and that the necessary justification had been provided.
On draft conclusion 2, he noted that, out of 60 States, only 6 opposed its content, which created an important background to assess the responsiveness of the Commission. Notwithstanding this landslide majority, the Commission made some modifications to address the views of those not fully comfortable with the content of the conclusion. He said he agreed that some nuanced language still remained in a respective commentary and acknowledged that some States would want to see more explicit connection between draft conclusion 2 and the criteria on draft conclusion 4, among other things.
Turning to draft conclusion 5, he confirmed that the text does not conclude that treaties and general principles are the basis of jus cogens. However, by using the language “may also” in the text, it is intended to indicate that the Commission does not rule out such a possibility. On draft conclusion 7, most States — except one — expressed appreciation that the Commission inserted “representativeness”. However, the real issue concerned the threshold “majority” and the level of it. While the Commission did not modify the threshold, it cannot be said that the Commission was not responsive. It considered and debated these concerns, taking into consideration that a vast majority supported this threshold, whereas only five States supported the “heightened threshold”.
Among his remarks on other draft conclusions, he also said that the common thread of the comments on draft conclusion 23, which includes the non‑exhaustive list of norms, stated that the Commission did not apply its own methodology in coming up with the list. The Commission considered these views, having debated it in the plenary and the Drafting Committee. The annex to draft conclusion 23 states that the compiled list constitutes a list of norms previously identified by the Commission as jus cogens status. “This is a statement of fact,” he added. Thus, the concerns regarding the methodology have been taken into account, whereby draft conclusion 23 was drafted in its present way. Contesting a comment that “modification is not possible” if customary international law is to be seen as the main basis of jus cogens, he noted that the issue is addressed in the commentary. Detailing his thoughts on the matter, he noted that paragraph 7 of draft conclusion 14 addresses this point.
Overall, the representative majority supported the draft conclusions, he pointed out, whereas the concerns expressed have been limited to a very small number of States and a small number of draft conclusions. He expressed hope that the Sixth Committee would be able to act on the recommendation made. Touching upon the draft resolution that will be under discussion, he expressed hope that any reference to the views of States would be balanced and not prejudicial. Moreso, he recalled an old adage that said: “Jus cogens is a weapon of the weak and the disenfranchised against the abuses of the powerful and the privileged.”
MARJA LEHTO, Special Rapporteur on “Protection of the environment in relation to armed conflicts”, said that the debate on this topic is an important part of the institutional dialogue between the International Law Commission and the Sixth Committee. Noting that States have the final say when the Commission completes work on a topic, she observed that the draft principles were generally well-received among delegations. She thanked those present for their engagement on this topic, and for their insightful comments and constructive criticism on the same. She added that the draft principles represent a collegial undertaking by the members of the Commission — building on previous work — and that many contributed to the final outcome.
Right of Reply
The representative of Cyprus, speaking in exercise of the right of reply, addressed the reference made by the delegate of Türkiye regarding Security Council resolution 541 (1983) — which condemns the illegal secessionist entity on territory of Cyprus — and to a European Court of Human Rights judgment. They do not reflect today’s realities and the remark was unacceptable. This is the Legal Committee discussing the International Law Commission report, he said, adding that Member States should avoid any politicization of the process.
The representative of Türkiye, responding, said that, if he wanted to politicize this issue, he would have done so. Rather, he was simply referring to a paragraph in the Commission’s report and suggesting that his interpretation of a certain case therein differed from that present in the report. He added that his remarks were purely legal in nature.
The representative of Israel expressed regret that certain delegations dragged today’s legal debate into the political realm. Such delegations wasted the limited time allotted for these discussions to address matters well beyond the purview of the Sixth Committee. They should try to find common ground instead of advancing narrow political goals, she added.
For information media. Not an official record.