The International Law Commission (ILC) held its seventieth session from April 30 to June 1 in New York and July 2 to August 10, 2018 in Geneva, under the chairmanship of Eduardo Valencia-Ospina (Colombia).Footnote 1 This session was the first time that the Commission had met outside of Geneva in twenty years and allowed for celebrations in two cities of the Commission's seventieth anniversary.
Notably, the Commission completed on second reading two topics: subsequent agreements and subsequent practice in relation to the interpretation of treaties; and identification of customary international law. The Commission completed on first reading two further topics: protection of the atmosphere; and provisional application of treaties. Progress was also made in developing draft conclusions on peremptory norms of general international law (jus cogens), draft principles on protection of the environment in relation to armed conflict, and draft articles on succession of states in respect of state responsibility.
The Commission commenced a debate but otherwise did not make progress with respect to its topic on the immunity of state officials from foreign criminal jurisdiction. The Commission, however, added a new topic to its agenda on general principles of law, and added two new topics to its long-term work program, namely on universal criminal jurisdiction and sea-level rise in relation to international law. The Commission did not work on a topic that completed its first reading in 2017 and that, after receiving reactions from governments and others, will likely undergo its second reading in 2019: crimes against humanity.
I. Commemorations of the Seventieth Anniversary of the Commission
Based on a theme “70 Years of the International Law Commission—Drawing a Balance for the Future,” the Commission celebrated its seventieth anniversary with commemorative events in New York on May 21 and in Geneva on July 5–6, 2018.Footnote 2 The New York event consisted of a solemn half-day meetingFootnote 3 followed by two panels designed to allow for a “conversation” between ILC members and representatives in the Sixth Committee of the UN General Assembly, as well as a keynote address.Footnote 4 The Geneva event similarly consisted of a solemn meeting,Footnote 5 a keynote address,Footnote 6 and five panels consisting of ILC members, legal advisers from states, and other international law experts, focusing on various aspects of the Commission's work concerning the progressive development of international law and its codification.Footnote 7 A commemorative volume is expected to publish the contributions made at these various events.Footnote 8
Given that the Commission was celebrating its seventieth anniversary, and given its atypical meeting in New York, there were a large number of additional side events involving ILC members, academics, representatives of states, international organizations, and non-governmental organizations, especially in New York.Footnote 9 Perhaps the most poignant of these panels, entitled “Seven Women in Seventy Years,” focused on the dearth of women who have been elected to the Commission over its life. The panel was organized by China, Finland, Portugal, Spain, Sweden, and Turkey (the states of nationality of the seven women who have served on the Commission).
As part of the anniversary celebration, the Codification Division of the UN Office of Legal Affairs, which serves as the Commission's secretariat, prepared a photo exhibit to “visualize” the development of international law during the past 150 years. Its images, drawn from the League of Nations archives, the United Nations Photo Library, and other collections, illustrated the contributions of the Commission, while placing its work in historical perspective. The exhibit was officially opened at the UN Headquarters in New York in May 2018 and has since been on display at the Palais des Nations in Geneva and the Peace Palace in The Hague. It is scheduled to travel to Addis Ababa, Bangkok, and Santiago de Chile in the course of the coming year.
II. Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties
The topic of “subsequent agreements and subsequent practice in relation to the interpretation of treaties,” originally considered by a study group of the Commission within the broader topic “treaties over time,” was completed on second reading during the seventieth session.Footnote 10 Under the guidance of its special rapporteur, Georg Nolte (Germany), the Commission adopted thirteen conclusions, with commentary, on the use of subsequent agreements and subsequent practice as a means of treaty interpretation, based on the Vienna Convention on the Law of Treaties (VCLT).Footnote 11
The purpose of the second reading of a topic is to adjust the first reading text and commentaries to take account of the views and concerns of states. Based on the Fifth Report of the special rapporteur,Footnote 12 the conclusions themselves underwent relatively minor changes from those adopted at first reading in 2016, with more changes occurring in the Commission's commentary. Two changes to the draft conclusions bear mention.
First, the Commission altered Conclusion 5, originally entitled “Attribution of Subsequent Practice,” so as to move away in paragraph 1 from saying that “subsequent practice” under VCLT Articles 31 and 32 “may consist of any conduct in the application of a treaty which is attributable to a party to the treaty under international law.”Footnote 13 Due to concerns that ultra vires conduct should not be viewed as being such subsequent practice, and yet may be attributable to the state, the Commission opted instead for a formulation that such subsequent practice “may consist of any conduct of a party in the application of a treaty, whether in the exercise of its executive, legislative, judicial or other functions,” and changed the title of the conclusion to “Conduct as Subsequent Practice.”Footnote 14 A similar formulation appears in the Commission's conclusions on identification of customary international law when identifying conduct of the state as state practice.Footnote 15
Second, with respect to Conclusion 13 on “pronouncements of expert treaty bodies,” the Commission revisited a savings clause that appears in the final paragraph. As a general matter, the conclusion is focused on how such pronouncements (for example, a comment issued by the Human Rights Committee) either might refer to a subsequent agreement or subsequent practice of parties to a treaty or might give rise to such agreement or practice by the reaction of parties to the pronouncement. The final paragraph at first reading, however, indicated that this “draft conclusion is without prejudice to the contribution that a pronouncement of an expert treaty body may otherwise make to the interpretation of a treaty.”Footnote 16 Concerned that such a savings clause might not sufficiently recognize the role such contributions may make, the special rapporteur in his Fifth Report proposed a new paragraph that would precede the savings clause, which would have read: “A pronouncement of an expert treaty body, in the interpretation and application of the treaty under its mandate, may contribute to the interpretation of that treaty when applying articles 31, paragraph 1, and 32.”Footnote 17 After much debate, the Commission decided not to include the paragraph, but slightly altered the savings clause so as to read that Conclusion 13 “is without prejudice to the contribution that pronouncements of expert treaty bodies make to the interpretation of the treaties under their mandates.”Footnote 18 This formulation, while remaining a savings clause, may be viewed as more oriented toward a recognition by the Commission that such pronouncements do contribute to the interpretation of treaties.Footnote 19
III. Identification of Customary International Law
At the seventieth session, the Commission also completed on second reading the topic “identification of customary international law,”Footnote 20 based upon the Fifth Report of the special rapporteur Michael Wood (United Kingdom).Footnote 21 Here, too, changes to the conclusions as adopted in 2016 at first reading were modest, while changes to the commentary were more extensive.Footnote 22 Conclusion 15 on the persistent objector rule was modified to include a new paragraph 3 reading: “The present conclusion is without prejudice to any question concerning peremptory norms of general international law (jus cogens).”Footnote 23 Conclusion 16, paragraph 2, was slightly modified by the addition of two words at the end (“among themselves”), so as to read: “To determine the existence and content of a rule of particular customary international law, it is necessary to ascertain whether there is a general practice among the States concerned that is accepted by them as law (opinio juris) among themselves.”Footnote 24
Several changes to the conclusions proposed by the special rapporteur were not made. For example, the Commission revisited its Conclusion 4, paragraph 2, which at first reading provided: “In certain cases, the practice of international organizations also contributes to the formation, or expression, of rules of customary international law.”Footnote 25 The special rapporteur proposed that the text be changed to say that the practice of international organizations “may also contribute” to the formation or expression of “a rule” of customary international law.Footnote 26 The Commission, however, decided to retain the original language. The chairman of the drafting committee explained that, while this “paragraph attracted much interest on the part of States and members of the Commission, as well as a range of opinions as to the appropriate way in which the relevance of practice of international organizations should be captured,” and while the proposed changes “aimed at emphasizing that caution was needed in assessing the relevance of the practice of international organizations, as well as better indicating that the practice of international organizations would not be relevant in all cases,” nevertheless “Members of the Committee were generally of the view that the text adopted on first reading was clear enough in this respect, and that the delicate balance achieved on first reading with regard to the wording of this paragraph would be altered by the proposed changes.”Footnote 27
The Commission also decided not to adopt certain proposals because of a belief that they would make it too difficult to identify rules of customary international law. Thus, the special rapporteur proposed that Conclusion 6, paragraph 1, be modified so as to make it clear that inaction had to be “deliberate” in order to count as state practice (as the draft commentary had already specified).Footnote 28 Yet several members “considered that the term ‘deliberate’ might hinder the necessary flexibility in the identification of customary international law, as it might constitute too stringent a threshold for the identification of practice in relation to certain categories of rules.”Footnote 29 Likewise, the Commission declined to replace “consistent” with “virtually uniform”Footnote 30 in Conclusion 8, paragraph 1, which reads: “The relevant practice must be general, meaning that it must be sufficiently widespread and representative, as well as consistent.”Footnote 31 Here, too, several members felt that “‘virtually uniform’ was only one of the terms used in the case-law, which all referred to a similar standard; and that it might be read to imply not only a stricter threshold of consistency, but also of participation by States in the relevant practice.”Footnote 32
At the same time, some significant changes were made to the Commission's commentary. While draft Conclusion 4 with respect to practice of international organizations was not changed, the commentary was adjusted to address strong concerns expressed by some states about an overemphasis on the role of international organizations. For example, the Commission indicated that the word “primarily” in Conclusion 4, paragraph 2, is intended in part to emphasize “the primary role of State practice in the formation and expression of rules of customary international law,”Footnote 33 and indicated that:
The practice of international organizations in international relations (when accompanied by opinio juris) may count as practice that gives rise or attests to rules of customary international law, but only those rules (a) whose subject matter falls within the mandate of the organizations, and/or (b) that are addressed specifically to them (such as those on their international responsibility or relating to treaties to which international organizations may be parties). The words “in certain cases” in paragraph 2 indeed serve to indicate that the practice of international organizations will not be relevant to the identification of all rules of customary international law, and further that it may be the practice of only some, not all, international organizations that is relevant.Footnote 34
At the same time, the Commission signaled clearly its view that this contributory role of international organizations pervades the entire set of conclusions, by adding a sentence to the commentary that reads: “In those cases where the practice of international organizations themselves is of relevance …, references in the draft conclusions and commentaries to the practice of States should be read as including, mutatis mutandis, the practice of international organizations.”Footnote 35
Adjustments to other parts of the commentary were also made to address concerns expressed by states. For example, in the commentary to Conclusion 8, a new reference to “specially-affected States” was included indicating that, when assessing a general practice, there may be circumstances where the practice of certain states is of particular significance. The relevant paragraph reads:
Thus, in assessing generality, an indispensable factor to be taken into account is the extent to which those States that are particularly involved in the relevant activity or are most likely to be concerned with the alleged rule (“specially affected States”) have participated in the practice. While in many cases all or virtually all States will be equally affected, it would clearly be impractical to determine, for example, the existence and content of a rule of customary international law relating to navigation in maritime zones without taking into account the practice of relevant coastal States and flag States, or the existence and content of a rule on foreign investment without evaluating the practice of the capital-exporting States as well as that of the States in which investment is made. It should be made clear, however, that the term “specially affected States” should not be taken to refer to the relative power of States.Footnote 36
IV. Other Topics Addressed During the Seventieth Session
Protection of the Atmosphere
In prior sessions, the Commission adopted preambular paragraphs and draft Guidelines 1 to 9 for its topic on the protection of the atmosphere.Footnote 37 During the seventieth session, the Commission adopted three final draft guidelines based on proposals contained in the Fifth Report by the special rapporteur, Shinya Murase (Japan).Footnote 38
New draft Guideline 10 on “Implementation” seeks to address generally measures by states at the national level relating to the protection of the atmosphere. It provides:
1. National implementation of obligations under international law relating to the protection of the atmosphere from atmospheric pollution and atmospheric degradation, including those referred to in the present draft guidelines, may take the form of legislative, administrative, judicial and other actions.
2. States should endeavour to give effect to the recommendations contained in the present draft guidelines.Footnote 39
With respect to paragraph 1, the draft guidelines indicate in only three places “obligations” of states in respect of protection of the atmosphere: generally, an “obligation to protect the atmosphere by exercising due diligence in taking appropriate measures, in accordance with applicable rules of international law …” (draft Guideline 3);Footnote 40 an “obligation to ensure that an environmental impact assessment is undertaken of proposed activities … which are likely to cause significant adverse impact on the atmosphere …” (draft Guideline 4);Footnote 41 and an “obligation to cooperate, as appropriate, with each other and with relevant international organizations …” (draft Guideline 8).Footnote 42 The remaining draft guidelines contain recommendations to states.
New draft guideline 11 on “Compliance” focuses on the need for states to comply with their international legal obligations relating to protection of the atmosphere. Recognizing that compliance may arise through either facilitative or enforcement procedures, it provides:
1. States are required to abide with their obligations under international law relating to the protection of the atmosphere from atmospheric pollution and atmospheric degradation in good faith, including through compliance with the rules and procedures in the relevant agreements to which they are parties.
2. To achieve compliance, facilitative or enforcement procedures may be used, as appropriate, in accordance with the relevant agreements:
(a) facilitative procedures may include providing assistance to States, in cases of non-compliance, in a transparent, non-adversarial and non-punitive manner to ensure that the States concerned comply with their obligations under international law, taking into account their capabilities and special conditions;
(b) enforcement procedures may include issuing a caution of noncompliance, termination of rights and privileges under the relevant agreements, and other forms of enforcement measures.Footnote 43
Finally, new draft Guideline 12 on “Dispute Settlement” provides:
1. Disputes between States relating to the protection of the atmosphere from atmospheric pollution and atmospheric degradation are to be settled by peaceful means.
2. Given that such disputes may be of a fact-intensive and science-dependent character, due consideration should be given to the use of technical and scientific experts.Footnote 44
Having completed its work on all of the proposals of the special rapporteur, the Commission revisited and made minor changes to earlier draft guidelines, and then adopted on first reading the preamble and twelve draft guidelines for this topic, with commentary.Footnote 45 The Commission will now wait to receive comments from governments by December 2019, after which it will return to this topic in 2020 for the second reading.
Provisional Application of Treaties
At the seventieth session,Footnote 46 the Commission had before it the Fifth Report of the special rapporteur for this topic, Juan Manuel Gómez-Robledo (Mexico).Footnote 47 That report proposed two new draft guidelines for the topic: one on the formulation of reservations when agreeing to provisionally apply a treaty; and the other on termination or suspension of the provisional application of a treaty as a consequence of its breach.Footnote 48 The report analyzed but made no proposal with respect to amendments to such an agreement.Footnote 49 The report also proposed a series of model clauses that might be used by states when entering into an agreement on provisional application of a treaty.Footnote 50
With respect to the first proposal, the Commission adopted a draft Guideline 7 on “reservations,” which reads as follows:
1. In accordance with the relevant rules of the Vienna Convention on the Law of Treaties, applied mutatis mutandis, a State may, when agreeing to the provisional application of a treaty or a part of a treaty, formulate a reservation purporting to exclude or modify the legal effect produced by the provisional application of certain provisions of that treaty.
2. In accordance with the relevant rules of international law, an international organization may, when agreeing to the provisional application of a treaty or a part of a treaty, formulate a reservation purporting to exclude or modify the legal effect produced by the provisional application of certain provisions of that treaty.Footnote 51
One interesting aspect of this draft guideline is that it is based on conjecture as to the possibility of reservations to an agreement on provisional application. The special rapporteur himself noted that he
has not yet encountered a treaty that provides for the formulation of reservations as from the time of provisional application, nor has he encountered provisional application provisions that refer to the possibility of formulating reservations. Furthermore, the memorandum by the Secretariat likewise does not identify any cases where a treaty has provided for the formulation of reservations in relation to its provisional application, or cases where a State has formulated reservations to a treaty that is being applied provisionally.Footnote 52
The Commission appears not to have construed the lack of any such practice of States or international organizations as indicating an opposite conclusion to what is said in the draft guideline—a conclusion that “reservations” are not permitted for provisional application or are not permitted in circumstances different that those identified in the VCLT.Footnote 53
With respect to the second proposal, the Commission ultimately adopted a draft Guideline 9 on “termination and suspension of provisional application,” which reads as follows:
1. The provisional application of a treaty or a part of a treaty terminates with the entry into force of that treaty in the relations between the States or international organizations concerned.
2. Unless the treaty otherwise provides or it is otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State or international organization is terminated if that State or international organization notifies the other States or international organizations between which the treaty or a part of a treaty is being applied provisionally of its intention not to become a party to the treaty.
3. The present draft guideline is without prejudice to the application, mutatis mutandis, of relevant rules set forth in part V, section 3, of the Vienna Convention on the Law of Treaties or other relevant rules of international law concerning termination and suspension.Footnote 54
Paragraph 1 indicates the most typical way that provisional application of a treaty might be terminated, which is when the treaty actually enters into force. The paragraph carefully notes that it terminates as among the states or international organizations “concerned,” meaning that a treaty might enter into force for some states or international organizations (in which case provisional application terminates as among them), but does not enter into force for others (in which case provisional application of the treaty continues). This is a useful reminder, given that VCLT Article 25 curiously did not indicate that provisional application would terminate under such circumstances.
Paragraph 2, by contrast, picks up what is clearly stated in VCLT Article 25, paragraph 2, which is that provisional application of a treaty can terminate for a state “if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty.”
Paragraph 3 is a without prejudice clause that leaves open whether there are other ways of terminating or suspending an agreement on provisional application. As was the case for reservations, the special rapporteur found that there is no practice demonstrating termination or suspension for material breach.Footnote 55 The lack any such practice might be due to the ability (unless it has been otherwise agreed) of a state to terminate its provisional application of a treaty at any time through a simple notice (per paragraph 2), without a need to rely on a ground such as material breach.
By focusing in paragraph 3 solely on Part V, Section 3, of the VCLT, the Commission is not acknowledging the possibility that an agreement on provisional application might be invalid ab initio, per VCLT Part V, Section 2 (Articles 46–53), nor that the procedural aspects of termination or suspension, found in VCLT Part V, Section 4 (Articles 65–68), are of relevance. Also left unaddressed is perhaps the most germane issue in this regard, which is whether a terminating or suspending state has any continuing obligations based on circumstances that arose during the period of provisional application.Footnote 56
While general comments were made both in the plenary debate and in the drafting committee with respect to the proposed model clauses, the Commission did not have sufficient time to review and discuss fully such clauses. It remains possible that, during second reading, a set of draft model clauses will be annexed to the guide, based on a revised proposal of the special rapporteur.Footnote 57
Having completed its work on all the proposals of the special rapporteur, the Commission adopted on first reading the twelve draft guidelines for this topic, with commentary, and decided to call it a “Guide to Provisional Application of Treaties.”Footnote 58 In doing so, certain revisions were made to previously adopted draft guidelines. Perhaps the most important of these revisions relates to draft Guideline 6, on “legal effect of provisional application.” That draft guideline was revised so as to read that the “provisional application of a treaty or a part of a treaty produces a legally binding obligation to apply the treaty or a part thereof as if the treaty were in force between the States or international organizations concerned, unless the treaty provides otherwise or it is otherwise agreed.”Footnote 59 The Commission will now receive comments from governments until December 2019, after which it will return to this topic in 2020 for the second reading.
Peremptory Norms of General International Law (Jus Cogens)
During the seventieth session,Footnote 60 the Commission had before it the Third Report of the special rapporteur, Dire D. Tladi (South Africa), which proposed no less than fourteen new draft conclusions on this topic.Footnote 61 The drafting committee was unable to complete work on all of these proposals but was able to adopt the following seven draft conclusions.Footnote 62
Draft Conclusion 8
Evidence of acceptance and recognition
1. Evidence of acceptance and recognition that a norm of general international law is a peremptory norm (jus cogens) may take a wide range of forms.
2. Such forms of evidence include, but are not limited to: public statements made on behalf of States; official publications; government legal opinions; diplomatic correspondence; legislative and administrative acts; decisions of national courts; treaty provisions; and resolutions adopted by an international organization or at an intergovernmental conference.
Draft Conclusion 9
Subsidiary means for the determination of the peremptory character of norms of general international law (jus cogens)
1. Decisions of international courts and tribunals, in particular of the International Court of Justice, are a subsidiary means for determining the peremptory character of norms of general international law (jus cogens).
2. The works of expert bodies established by States or international organizations and the teachings of the most highly qualified publicists of the various nations may also serve as subsidiary means for determining the peremptory character of norms of general international law (jus cogens).
Draft Conclusion 10
Invalidity and termination of treaties in conflict with a peremptory norm of general international law (jus cogens)
1. A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law (jus cogens). The provisions of such a treaty have no legal force.
2. If a new peremptory norm of general international law (jus cogens) emerges, any existing treaty which is in conflict with that norm becomes void and terminates. The parties to such a treaty are released from any obligation further to perform the treaty.
Draft Conclusion 11
Separability of treaty provisions in conflict with a peremptory norm of general international law (jus cogens)
1. A treaty which, at the time of its conclusion, conflicts with a peremptory norm of general international law (jus cogens) is void in whole, and no separation of the provisions of the treaty is permitted.
2. A treaty which becomes void because of the emergence of a new peremptory norm of general international law (jus cogens) terminates in whole, unless:
(a) the provisions that are in conflict with a peremptory norm of general international law (jus cogens) are separable from the remainder of the treaty with regard to their application;
(b) it appears from the treaty or is otherwise established that acceptance of the said provisions was not an essential basis of the consent of any party to be bound by the treaty as a whole; and
(c) continued performance of the remainder of the treaty would not be unjust.
Draft Conclusion 12
Consequences of the invalidity and termination of a treaty which conflicts with a peremptory norm of general international law (jus cogens)
1. Parties to a treaty which is void as a result of being in conflict with a peremptory norm of general international law (jus cogens) at the time of the treaty's conclusion have a legal obligation to:
(a) eliminate as far as possible the consequences of any act performed in reliance on any provision of the treaty which conflicts with a peremptory norm of general international law (jus cogens); and
(b) bring their mutual relations into conformity with the peremptory norm of general international law (jus cogens).
2. The termination of a treaty on account of the emergence of a new peremptory norm of general international law (jus cogens) does not affect any right, obligation or legal situation created through the execution of the treaty prior to the termination of the treaty, provided that those rights, obligations or situations may thereafter be maintained only to the extent that their maintenance is not in itself in conflict with the new peremptory norm of general international law (jus cogens).
Draft Conclusion 13
Absence of effect of reservations to treaties on peremptory norms of general international law (jus cogens)
1. A reservation to a treaty provision which reflects a peremptory norm of general international law (jus cogens) does not affect the binding nature of that norm, which shall continue to apply as such.
2. A reservation cannot exclude or modify the legal effect of a treaty in a manner contrary to a peremptory norm of general international law (jus cogens).
Draft Conclusion 14Footnote 63
Procedural requirements
1. A State which invokes a peremptory norm of general international law (jus cogens) as a ground for the invalidity or termination of a rule of international law is to notify other States concerned of its claim. The notification is to be in writing and is to indicate the measure proposed to be taken with respect to the rule of international law in question.
2. If none of the other States concerned raises an objection within a period which, except in cases of special urgency, shall not be less than three months, the invoking State may carry out the measure which it has proposed.
3. If any State concerned raises an objection, then the States concerned are to seek a solution through the means indicated in Article 33 of the Charter of the United Nations.
4. If no solution is reached within a period of twelve months, and the objecting State or States concerned offer to submit the matter to the International Court of Justice, the invoking State may not carry out the measure which it has proposed until the dispute is resolved.
5. This draft conclusion is without prejudice to the procedural requirements set forth in the Vienna Convention on the Law of Treaties, the relevant rules concerning the jurisdiction of the International Court of Justice and other applicable dispute settlement provisions agreed by the States concerned.
The drafting committee did not have sufficient time to consider the remaining proposals of the special rapporteur. Further, the draft conclusions indicated above have not yet been adopted by the Commission as a whole, because the special rapporteur prefers to wait until all the draft conclusions have been completed in the drafting committee before preparing a commentary, and the Commission only adopts draft articles or conclusions simultaneously with their commentary. The special rapporteur has indicated that a Fourth Report in 2019 could address miscellaneous issues, allowing the possibility for adoption of an entire set of draft conclusions with commentary on first reading.Footnote 64
Protection of the Environment in Relation to Armed Conflicts
In 2017, the Commission appointed a new special rapporteur, Marja Lehto (Finland), to serve as special rapporteur for this topic,Footnote 65 and she produced a First Report for the seventieth session.Footnote 66 That report focused principally on the protection of the environment in situations of occupied territory. Based on that report, the drafting committee provisionally adopted three draft principles reading as follows:
Draft principle 19
General obligations of an Occupying Power
1. An Occupying Power shall respect and protect the environment of the occupied territory in accordance with applicable international law and take environmental considerations into account in the administration of such territory.
2. An Occupying Power shall take appropriate measures to prevent significant harm to the environment of the occupied territory that is likely to prejudice the health and wellbeing of the population of the occupied territory.
3. An Occupying Power shall respect the law and institutions of the occupied territory concerning the protection of the environment and may only introduce changes within the limits provided by the law of armed conflict.
Draft principle 20
Sustainable use of natural resources
To the extent that an Occupying Power is permitted to administer and use the natural resources in an occupied territory, for the benefit of the population of the occupied territory and for other lawful purposes under the law of armed conflict, it shall do so in a way that ensures their sustainable use and minimizes environmental harm.
Draft principle 21
Due diligence
An Occupying Power shall exercise due diligence to ensure that activities in the occupied territory do not cause significant harm to the environment of areas beyond the occupied territory.Footnote 67
Further, the special rapporteur developed commentary for the prior draft principles that had been adopted in the drafting committee, thereby allowing the Commission to adopt a nearly complete set of draft principles.Footnote 68 The special rapporteur has indicated an intention in her Second Report to address the protection of the environment in non-international armed conflicts, as well as certain questions related to the responsibility and liability for environmental harm in relation to armed conflicts. Along with completion of work on a preamble and definitions, the special rapporteur envisaged completion of the topic on first reading in 2019.Footnote 69
Succession of States in Respect of State Responsibility
In 2017, the Commission moved the topic of succession of states in respect of state responsibility onto the current program of work and appointed Pavel Šturma (Czech Republic) as special rapporteur.Footnote 70 Generally speaking, this topic analyzes the rules on state responsibility applicable to the rights and obligations of a predecessor state, a successor state, and third states, in situations where a succession of states occurs.Footnote 71
The special rapporteur has so far produced a First ReportFootnote 72 and a Second Report,Footnote 73 which have resulted in the transmittal of several draft articles to the drafting committee. While the special rapporteur contemplated in his First Report a general rule of succession of state responsibility with exceptions, his Second Report was firmly in the camp of those who see a rule of non-succession of state responsibility when the predecessor state continues to exist, but with exceptions or special rules in some instances. This change in orientation appears consistent with the views expressed by a number of states in the Sixth Committee of the General Assembly that “considered that the principle of non-succession regarding state responsibility reflected the current law on the matter.”Footnote 74 Those states included Austria, Iran, Japan, Russia, and Vietnam.
Based on this approach, the special rapporteur advanced certain exceptions or special rules for cases of succession where a predecessor state continues to exist, where two or more states unified, or where a state dissolves into two or more states. For example, in case of a separation or transfer of part of a territory, “if the particular circumstances so require,” the obligations arising from an internationally wrongful act of the predecessor state would transfer to the successor state when the act was carried out by an organ of a territorial unit of the predecessor that has later become an organ of the successor state.
Yet the drafting committee found it difficult to make much progress on the proposals. Ultimately, it provisionally adopted just two modest draft articles. Draft Article 5, on “Cases of Succession of States Covered by the Present Draft Articles,” provides: “The present draft articles apply only to the effects of a succession of States occurring in conformity with international law and, in particular, the principles of international law embodied in the Charter of the United Nations.”Footnote 75 This draft article mirrors the approach taken in the Vienna Conventions on succession issuesFootnote 76 and in the Commission's Articles on Nationality of Persons in Relation to the Succession of States.Footnote 77 The drafting committee also adopted a draft Article 6 entitled “No Effect Upon Attribution,” which reads: “A succession of States has no effect upon the attribution to a State of an internationally wrongful act committed by that State before the date of succession.”Footnote 78
In 2019, the drafting committee will continue work on the special rapporteur's proposals. Further, according to the special rapporteur, a Third Report in 2019 “will focus on the transfer of the rights or claims of an injured predecessor State to [a] successor State.”Footnote 79 A Fourth Report in 2020 might then address procedural and miscellaneous issues, allowing for a first reading of the entire topic in 2020 or 2021.Footnote 80
Immunity of State Officials from Foreign Criminal Jurisdiction
Toward the end of the seventieth session, the Commission received the Sixth Report on “Immunity of State Officials from Foreign Criminal Jurisdiction” by its second special rapporteur for this topic, Concepción Escobar Hernández (Spain).Footnote 81 The report discussed in general terms procedural issues relating to three issues: when it is that immunity should be considered by the authorities of the forum state;Footnote 82 the acts of the forum state authorities that are affected by immunity;Footnote 83 and the determination of immunity.Footnote 84 The Sixth Report made no proposals for additional draft articles.
The Commission commenced a debate on the Sixth Report, but was not able to conclude it before the end of the session, and therefore it will continue during the seventy-first session in 2019. The special rapporteur has indicated that she will also submit for that session a Seventh Report, which will propose provisions on procedural rules relating to the immunity of State officials, and which might allow for adoption of a full set of draft articles and commentaries on first reading.
V. Other Decisions and Future Work
During the seventieth session, the Commission placed two new topics on its long-term work program: (1) universal criminal jurisdiction;Footnote 85 and (2) sea-level rise in relation to international law.Footnote 86 During the present quinquennium, the Commission may decide to place one or both of these topics on its agenda.
The first topic on “universal criminal jurisdiction” is contemplated as being pursued by appointment of a special rapporteur. The topic proposal notes:
12. The Sixth Committee has been debating the topic annually since 2009. While important progress has been made in clarifying areas of difference of view concerning universal jurisdiction during the last nine years, in other respects, progress has not been as substantial as was initially envisaged. The [African Union] as recently as January 2018, adopted a decision in which it expressed regret at the “apparent impasse” in the debate of the universality topic in the General Assembly and consequently called on the African Group in New York to “make recommendations to the Summit on how to move this discussion forward.” The lack of meaningful progress seems due, at least partially, to the political disagreements concerning the potential for selective and arbitrary application of this jurisdictional principle. Indeed, during the 2017 General Assembly debate on the issue, the overwhelming majority of delegations could agree on the need to advance the discussion on universal jurisdiction, while differing over its definition, nature, scope and limits. The same pattern can be discerned from earlier debates of the Sixth Committee dating back to October 2010.
13. In these circumstances, if focused on a limited set of core legal issues rather than the entire panoply of issues identified by States as areas reflecting their differing views …, the Commission would appear to be particularly well placed to assist States by formulating guidelines or drawing conclusions clarifying the nature, scope, limits and procedural safeguards that guide the proper application of universal jurisdiction.Footnote 87
The second topic on “sea-level rise in relation to international law” is viewed within the Commission as being best suited for a study group. If taken up, the study group no doubt will benefit from recent work by the International Law Association (ILA), which has already studied or is studying the same issues that the ILC proposes to pursue. Indeed, the topic of sea-level rise was initially examined by the ILA Committee on Baselines Under the International Law of the Sea, which stated in its final report considered at the Sofia Conference in 2012 that “the existing law of the normal baseline applies in situations of significant coastal change caused by both territorial gain and territorial loss. Coastal states may protect and preserve territory through physical reinforcement, but not through the legal fiction of a charted line that is unrepresentative of the actual low-water line.”Footnote 88
At the same time, the ILA Committee on Baselines Under International Law recognized “that substantial territorial loss resulting from sea-level rise is an issue that extends beyond baselines and the law of the sea and encompasses consideration at a junction of several parts of international law.”Footnote 89 For that reason, the ILA in 2012 established a new ILA Committee on International Law and Sea Level Rise. That Committee decided to focus its work on three main issue areas: the law of the sea; forced migration and human rights; and issues of statehood and international security. An interim Committee report, which was presented at the Johannesburg Conference in 2016,Footnote 90 focused on issues regarding the law of the sea and migration/human rights. Another report was considered at the Sydney Conference in 2018,Footnote 91 which completed the Committee's work on law of the sea issues.
Based on that report, the ILA adopted a resolution that: (1) noted “that the Committee has presented evidence of the emergence of State practice, particularly in the South Pacific region, indicating that small island States intend to maintain the baselines and limits of their current maritime zones established in accordance with the 1982 Law of the Sea Convention for the future, notwithstanding physical coastline changes brought about by sea level rise”; (2) endorsed
the proposal of the Committee that, on the grounds of legal certainty and stability, provided that the baselines and the outer limits of maritime zones of a coastal or an archipelagic State have been properly determined in accordance with the 1982 Law of the Sea Convention, these baselines and limits should not be required to be recalculated should sea level change affect the geographical reality of the coastline;
and (3) further endorsed
the Committee's proposal that the interpretation of the 1982 Law of the Sea Convention in relation to the ability of coastal and archipelagic States to maintain their existing lawful maritime entitlements should apply equally to maritime boundaries delimited by international agreement or by decisions of international courts or arbitral tribunals.Footnote 92
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The International Law Commission (ILC) held its seventieth session from April 30 to June 1 in New York and July 2 to August 10, 2018 in Geneva, under the chairmanship of Eduardo Valencia-Ospina (Colombia).Footnote 1 This session was the first time that the Commission had met outside of Geneva in twenty years and allowed for celebrations in two cities of the Commission's seventieth anniversary.
Notably, the Commission completed on second reading two topics: subsequent agreements and subsequent practice in relation to the interpretation of treaties; and identification of customary international law. The Commission completed on first reading two further topics: protection of the atmosphere; and provisional application of treaties. Progress was also made in developing draft conclusions on peremptory norms of general international law (jus cogens), draft principles on protection of the environment in relation to armed conflict, and draft articles on succession of states in respect of state responsibility.
The Commission commenced a debate but otherwise did not make progress with respect to its topic on the immunity of state officials from foreign criminal jurisdiction. The Commission, however, added a new topic to its agenda on general principles of law, and added two new topics to its long-term work program, namely on universal criminal jurisdiction and sea-level rise in relation to international law. The Commission did not work on a topic that completed its first reading in 2017 and that, after receiving reactions from governments and others, will likely undergo its second reading in 2019: crimes against humanity.
I. Commemorations of the Seventieth Anniversary of the Commission
Based on a theme “70 Years of the International Law Commission—Drawing a Balance for the Future,” the Commission celebrated its seventieth anniversary with commemorative events in New York on May 21 and in Geneva on July 5–6, 2018.Footnote 2 The New York event consisted of a solemn half-day meetingFootnote 3 followed by two panels designed to allow for a “conversation” between ILC members and representatives in the Sixth Committee of the UN General Assembly, as well as a keynote address.Footnote 4 The Geneva event similarly consisted of a solemn meeting,Footnote 5 a keynote address,Footnote 6 and five panels consisting of ILC members, legal advisers from states, and other international law experts, focusing on various aspects of the Commission's work concerning the progressive development of international law and its codification.Footnote 7 A commemorative volume is expected to publish the contributions made at these various events.Footnote 8
Given that the Commission was celebrating its seventieth anniversary, and given its atypical meeting in New York, there were a large number of additional side events involving ILC members, academics, representatives of states, international organizations, and non-governmental organizations, especially in New York.Footnote 9 Perhaps the most poignant of these panels, entitled “Seven Women in Seventy Years,” focused on the dearth of women who have been elected to the Commission over its life. The panel was organized by China, Finland, Portugal, Spain, Sweden, and Turkey (the states of nationality of the seven women who have served on the Commission).
As part of the anniversary celebration, the Codification Division of the UN Office of Legal Affairs, which serves as the Commission's secretariat, prepared a photo exhibit to “visualize” the development of international law during the past 150 years. Its images, drawn from the League of Nations archives, the United Nations Photo Library, and other collections, illustrated the contributions of the Commission, while placing its work in historical perspective. The exhibit was officially opened at the UN Headquarters in New York in May 2018 and has since been on display at the Palais des Nations in Geneva and the Peace Palace in The Hague. It is scheduled to travel to Addis Ababa, Bangkok, and Santiago de Chile in the course of the coming year.
II. Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties
The topic of “subsequent agreements and subsequent practice in relation to the interpretation of treaties,” originally considered by a study group of the Commission within the broader topic “treaties over time,” was completed on second reading during the seventieth session.Footnote 10 Under the guidance of its special rapporteur, Georg Nolte (Germany), the Commission adopted thirteen conclusions, with commentary, on the use of subsequent agreements and subsequent practice as a means of treaty interpretation, based on the Vienna Convention on the Law of Treaties (VCLT).Footnote 11
The purpose of the second reading of a topic is to adjust the first reading text and commentaries to take account of the views and concerns of states. Based on the Fifth Report of the special rapporteur,Footnote 12 the conclusions themselves underwent relatively minor changes from those adopted at first reading in 2016, with more changes occurring in the Commission's commentary. Two changes to the draft conclusions bear mention.
First, the Commission altered Conclusion 5, originally entitled “Attribution of Subsequent Practice,” so as to move away in paragraph 1 from saying that “subsequent practice” under VCLT Articles 31 and 32 “may consist of any conduct in the application of a treaty which is attributable to a party to the treaty under international law.”Footnote 13 Due to concerns that ultra vires conduct should not be viewed as being such subsequent practice, and yet may be attributable to the state, the Commission opted instead for a formulation that such subsequent practice “may consist of any conduct of a party in the application of a treaty, whether in the exercise of its executive, legislative, judicial or other functions,” and changed the title of the conclusion to “Conduct as Subsequent Practice.”Footnote 14 A similar formulation appears in the Commission's conclusions on identification of customary international law when identifying conduct of the state as state practice.Footnote 15
Second, with respect to Conclusion 13 on “pronouncements of expert treaty bodies,” the Commission revisited a savings clause that appears in the final paragraph. As a general matter, the conclusion is focused on how such pronouncements (for example, a comment issued by the Human Rights Committee) either might refer to a subsequent agreement or subsequent practice of parties to a treaty or might give rise to such agreement or practice by the reaction of parties to the pronouncement. The final paragraph at first reading, however, indicated that this “draft conclusion is without prejudice to the contribution that a pronouncement of an expert treaty body may otherwise make to the interpretation of a treaty.”Footnote 16 Concerned that such a savings clause might not sufficiently recognize the role such contributions may make, the special rapporteur in his Fifth Report proposed a new paragraph that would precede the savings clause, which would have read: “A pronouncement of an expert treaty body, in the interpretation and application of the treaty under its mandate, may contribute to the interpretation of that treaty when applying articles 31, paragraph 1, and 32.”Footnote 17 After much debate, the Commission decided not to include the paragraph, but slightly altered the savings clause so as to read that Conclusion 13 “is without prejudice to the contribution that pronouncements of expert treaty bodies make to the interpretation of the treaties under their mandates.”Footnote 18 This formulation, while remaining a savings clause, may be viewed as more oriented toward a recognition by the Commission that such pronouncements do contribute to the interpretation of treaties.Footnote 19
III. Identification of Customary International Law
At the seventieth session, the Commission also completed on second reading the topic “identification of customary international law,”Footnote 20 based upon the Fifth Report of the special rapporteur Michael Wood (United Kingdom).Footnote 21 Here, too, changes to the conclusions as adopted in 2016 at first reading were modest, while changes to the commentary were more extensive.Footnote 22 Conclusion 15 on the persistent objector rule was modified to include a new paragraph 3 reading: “The present conclusion is without prejudice to any question concerning peremptory norms of general international law (jus cogens).”Footnote 23 Conclusion 16, paragraph 2, was slightly modified by the addition of two words at the end (“among themselves”), so as to read: “To determine the existence and content of a rule of particular customary international law, it is necessary to ascertain whether there is a general practice among the States concerned that is accepted by them as law (opinio juris) among themselves.”Footnote 24
Several changes to the conclusions proposed by the special rapporteur were not made. For example, the Commission revisited its Conclusion 4, paragraph 2, which at first reading provided: “In certain cases, the practice of international organizations also contributes to the formation, or expression, of rules of customary international law.”Footnote 25 The special rapporteur proposed that the text be changed to say that the practice of international organizations “may also contribute” to the formation or expression of “a rule” of customary international law.Footnote 26 The Commission, however, decided to retain the original language. The chairman of the drafting committee explained that, while this “paragraph attracted much interest on the part of States and members of the Commission, as well as a range of opinions as to the appropriate way in which the relevance of practice of international organizations should be captured,” and while the proposed changes “aimed at emphasizing that caution was needed in assessing the relevance of the practice of international organizations, as well as better indicating that the practice of international organizations would not be relevant in all cases,” nevertheless “Members of the Committee were generally of the view that the text adopted on first reading was clear enough in this respect, and that the delicate balance achieved on first reading with regard to the wording of this paragraph would be altered by the proposed changes.”Footnote 27
The Commission also decided not to adopt certain proposals because of a belief that they would make it too difficult to identify rules of customary international law. Thus, the special rapporteur proposed that Conclusion 6, paragraph 1, be modified so as to make it clear that inaction had to be “deliberate” in order to count as state practice (as the draft commentary had already specified).Footnote 28 Yet several members “considered that the term ‘deliberate’ might hinder the necessary flexibility in the identification of customary international law, as it might constitute too stringent a threshold for the identification of practice in relation to certain categories of rules.”Footnote 29 Likewise, the Commission declined to replace “consistent” with “virtually uniform”Footnote 30 in Conclusion 8, paragraph 1, which reads: “The relevant practice must be general, meaning that it must be sufficiently widespread and representative, as well as consistent.”Footnote 31 Here, too, several members felt that “‘virtually uniform’ was only one of the terms used in the case-law, which all referred to a similar standard; and that it might be read to imply not only a stricter threshold of consistency, but also of participation by States in the relevant practice.”Footnote 32
At the same time, some significant changes were made to the Commission's commentary. While draft Conclusion 4 with respect to practice of international organizations was not changed, the commentary was adjusted to address strong concerns expressed by some states about an overemphasis on the role of international organizations. For example, the Commission indicated that the word “primarily” in Conclusion 4, paragraph 2, is intended in part to emphasize “the primary role of State practice in the formation and expression of rules of customary international law,”Footnote 33 and indicated that:
The practice of international organizations in international relations (when accompanied by opinio juris) may count as practice that gives rise or attests to rules of customary international law, but only those rules (a) whose subject matter falls within the mandate of the organizations, and/or (b) that are addressed specifically to them (such as those on their international responsibility or relating to treaties to which international organizations may be parties). The words “in certain cases” in paragraph 2 indeed serve to indicate that the practice of international organizations will not be relevant to the identification of all rules of customary international law, and further that it may be the practice of only some, not all, international organizations that is relevant.Footnote 34
At the same time, the Commission signaled clearly its view that this contributory role of international organizations pervades the entire set of conclusions, by adding a sentence to the commentary that reads: “In those cases where the practice of international organizations themselves is of relevance …, references in the draft conclusions and commentaries to the practice of States should be read as including, mutatis mutandis, the practice of international organizations.”Footnote 35
Adjustments to other parts of the commentary were also made to address concerns expressed by states. For example, in the commentary to Conclusion 8, a new reference to “specially-affected States” was included indicating that, when assessing a general practice, there may be circumstances where the practice of certain states is of particular significance. The relevant paragraph reads:
Thus, in assessing generality, an indispensable factor to be taken into account is the extent to which those States that are particularly involved in the relevant activity or are most likely to be concerned with the alleged rule (“specially affected States”) have participated in the practice. While in many cases all or virtually all States will be equally affected, it would clearly be impractical to determine, for example, the existence and content of a rule of customary international law relating to navigation in maritime zones without taking into account the practice of relevant coastal States and flag States, or the existence and content of a rule on foreign investment without evaluating the practice of the capital-exporting States as well as that of the States in which investment is made. It should be made clear, however, that the term “specially affected States” should not be taken to refer to the relative power of States.Footnote 36
IV. Other Topics Addressed During the Seventieth Session
Protection of the Atmosphere
In prior sessions, the Commission adopted preambular paragraphs and draft Guidelines 1 to 9 for its topic on the protection of the atmosphere.Footnote 37 During the seventieth session, the Commission adopted three final draft guidelines based on proposals contained in the Fifth Report by the special rapporteur, Shinya Murase (Japan).Footnote 38
New draft Guideline 10 on “Implementation” seeks to address generally measures by states at the national level relating to the protection of the atmosphere. It provides:
1. National implementation of obligations under international law relating to the protection of the atmosphere from atmospheric pollution and atmospheric degradation, including those referred to in the present draft guidelines, may take the form of legislative, administrative, judicial and other actions.
2. States should endeavour to give effect to the recommendations contained in the present draft guidelines.Footnote 39
With respect to paragraph 1, the draft guidelines indicate in only three places “obligations” of states in respect of protection of the atmosphere: generally, an “obligation to protect the atmosphere by exercising due diligence in taking appropriate measures, in accordance with applicable rules of international law …” (draft Guideline 3);Footnote 40 an “obligation to ensure that an environmental impact assessment is undertaken of proposed activities … which are likely to cause significant adverse impact on the atmosphere …” (draft Guideline 4);Footnote 41 and an “obligation to cooperate, as appropriate, with each other and with relevant international organizations …” (draft Guideline 8).Footnote 42 The remaining draft guidelines contain recommendations to states.
New draft guideline 11 on “Compliance” focuses on the need for states to comply with their international legal obligations relating to protection of the atmosphere. Recognizing that compliance may arise through either facilitative or enforcement procedures, it provides:
1. States are required to abide with their obligations under international law relating to the protection of the atmosphere from atmospheric pollution and atmospheric degradation in good faith, including through compliance with the rules and procedures in the relevant agreements to which they are parties.
2. To achieve compliance, facilitative or enforcement procedures may be used, as appropriate, in accordance with the relevant agreements:
(a) facilitative procedures may include providing assistance to States, in cases of non-compliance, in a transparent, non-adversarial and non-punitive manner to ensure that the States concerned comply with their obligations under international law, taking into account their capabilities and special conditions;
(b) enforcement procedures may include issuing a caution of noncompliance, termination of rights and privileges under the relevant agreements, and other forms of enforcement measures.Footnote 43
Finally, new draft Guideline 12 on “Dispute Settlement” provides:
1. Disputes between States relating to the protection of the atmosphere from atmospheric pollution and atmospheric degradation are to be settled by peaceful means.
2. Given that such disputes may be of a fact-intensive and science-dependent character, due consideration should be given to the use of technical and scientific experts.Footnote 44
Having completed its work on all of the proposals of the special rapporteur, the Commission revisited and made minor changes to earlier draft guidelines, and then adopted on first reading the preamble and twelve draft guidelines for this topic, with commentary.Footnote 45 The Commission will now wait to receive comments from governments by December 2019, after which it will return to this topic in 2020 for the second reading.
Provisional Application of Treaties
At the seventieth session,Footnote 46 the Commission had before it the Fifth Report of the special rapporteur for this topic, Juan Manuel Gómez-Robledo (Mexico).Footnote 47 That report proposed two new draft guidelines for the topic: one on the formulation of reservations when agreeing to provisionally apply a treaty; and the other on termination or suspension of the provisional application of a treaty as a consequence of its breach.Footnote 48 The report analyzed but made no proposal with respect to amendments to such an agreement.Footnote 49 The report also proposed a series of model clauses that might be used by states when entering into an agreement on provisional application of a treaty.Footnote 50
With respect to the first proposal, the Commission adopted a draft Guideline 7 on “reservations,” which reads as follows:
1. In accordance with the relevant rules of the Vienna Convention on the Law of Treaties, applied mutatis mutandis, a State may, when agreeing to the provisional application of a treaty or a part of a treaty, formulate a reservation purporting to exclude or modify the legal effect produced by the provisional application of certain provisions of that treaty.
2. In accordance with the relevant rules of international law, an international organization may, when agreeing to the provisional application of a treaty or a part of a treaty, formulate a reservation purporting to exclude or modify the legal effect produced by the provisional application of certain provisions of that treaty.Footnote 51
One interesting aspect of this draft guideline is that it is based on conjecture as to the possibility of reservations to an agreement on provisional application. The special rapporteur himself noted that he
has not yet encountered a treaty that provides for the formulation of reservations as from the time of provisional application, nor has he encountered provisional application provisions that refer to the possibility of formulating reservations. Furthermore, the memorandum by the Secretariat likewise does not identify any cases where a treaty has provided for the formulation of reservations in relation to its provisional application, or cases where a State has formulated reservations to a treaty that is being applied provisionally.Footnote 52
The Commission appears not to have construed the lack of any such practice of States or international organizations as indicating an opposite conclusion to what is said in the draft guideline—a conclusion that “reservations” are not permitted for provisional application or are not permitted in circumstances different that those identified in the VCLT.Footnote 53
With respect to the second proposal, the Commission ultimately adopted a draft Guideline 9 on “termination and suspension of provisional application,” which reads as follows:
1. The provisional application of a treaty or a part of a treaty terminates with the entry into force of that treaty in the relations between the States or international organizations concerned.
2. Unless the treaty otherwise provides or it is otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State or international organization is terminated if that State or international organization notifies the other States or international organizations between which the treaty or a part of a treaty is being applied provisionally of its intention not to become a party to the treaty.
3. The present draft guideline is without prejudice to the application, mutatis mutandis, of relevant rules set forth in part V, section 3, of the Vienna Convention on the Law of Treaties or other relevant rules of international law concerning termination and suspension.Footnote 54
Paragraph 1 indicates the most typical way that provisional application of a treaty might be terminated, which is when the treaty actually enters into force. The paragraph carefully notes that it terminates as among the states or international organizations “concerned,” meaning that a treaty might enter into force for some states or international organizations (in which case provisional application terminates as among them), but does not enter into force for others (in which case provisional application of the treaty continues). This is a useful reminder, given that VCLT Article 25 curiously did not indicate that provisional application would terminate under such circumstances.
Paragraph 2, by contrast, picks up what is clearly stated in VCLT Article 25, paragraph 2, which is that provisional application of a treaty can terminate for a state “if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty.”
Paragraph 3 is a without prejudice clause that leaves open whether there are other ways of terminating or suspending an agreement on provisional application. As was the case for reservations, the special rapporteur found that there is no practice demonstrating termination or suspension for material breach.Footnote 55 The lack any such practice might be due to the ability (unless it has been otherwise agreed) of a state to terminate its provisional application of a treaty at any time through a simple notice (per paragraph 2), without a need to rely on a ground such as material breach.
By focusing in paragraph 3 solely on Part V, Section 3, of the VCLT, the Commission is not acknowledging the possibility that an agreement on provisional application might be invalid ab initio, per VCLT Part V, Section 2 (Articles 46–53), nor that the procedural aspects of termination or suspension, found in VCLT Part V, Section 4 (Articles 65–68), are of relevance. Also left unaddressed is perhaps the most germane issue in this regard, which is whether a terminating or suspending state has any continuing obligations based on circumstances that arose during the period of provisional application.Footnote 56
While general comments were made both in the plenary debate and in the drafting committee with respect to the proposed model clauses, the Commission did not have sufficient time to review and discuss fully such clauses. It remains possible that, during second reading, a set of draft model clauses will be annexed to the guide, based on a revised proposal of the special rapporteur.Footnote 57
Having completed its work on all the proposals of the special rapporteur, the Commission adopted on first reading the twelve draft guidelines for this topic, with commentary, and decided to call it a “Guide to Provisional Application of Treaties.”Footnote 58 In doing so, certain revisions were made to previously adopted draft guidelines. Perhaps the most important of these revisions relates to draft Guideline 6, on “legal effect of provisional application.” That draft guideline was revised so as to read that the “provisional application of a treaty or a part of a treaty produces a legally binding obligation to apply the treaty or a part thereof as if the treaty were in force between the States or international organizations concerned, unless the treaty provides otherwise or it is otherwise agreed.”Footnote 59 The Commission will now receive comments from governments until December 2019, after which it will return to this topic in 2020 for the second reading.
Peremptory Norms of General International Law (Jus Cogens)
During the seventieth session,Footnote 60 the Commission had before it the Third Report of the special rapporteur, Dire D. Tladi (South Africa), which proposed no less than fourteen new draft conclusions on this topic.Footnote 61 The drafting committee was unable to complete work on all of these proposals but was able to adopt the following seven draft conclusions.Footnote 62
Draft Conclusion 8
Evidence of acceptance and recognition
1. Evidence of acceptance and recognition that a norm of general international law is a peremptory norm (jus cogens) may take a wide range of forms.
2. Such forms of evidence include, but are not limited to: public statements made on behalf of States; official publications; government legal opinions; diplomatic correspondence; legislative and administrative acts; decisions of national courts; treaty provisions; and resolutions adopted by an international organization or at an intergovernmental conference.
Draft Conclusion 9
Subsidiary means for the determination of the peremptory character of norms of general international law (jus cogens)
1. Decisions of international courts and tribunals, in particular of the International Court of Justice, are a subsidiary means for determining the peremptory character of norms of general international law (jus cogens).
2. The works of expert bodies established by States or international organizations and the teachings of the most highly qualified publicists of the various nations may also serve as subsidiary means for determining the peremptory character of norms of general international law (jus cogens).
Draft Conclusion 10
Invalidity and termination of treaties in conflict with a peremptory norm of general international law (jus cogens)
1. A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law (jus cogens). The provisions of such a treaty have no legal force.
2. If a new peremptory norm of general international law (jus cogens) emerges, any existing treaty which is in conflict with that norm becomes void and terminates. The parties to such a treaty are released from any obligation further to perform the treaty.
Draft Conclusion 11
Separability of treaty provisions in conflict with a peremptory norm of general international law (jus cogens)
1. A treaty which, at the time of its conclusion, conflicts with a peremptory norm of general international law (jus cogens) is void in whole, and no separation of the provisions of the treaty is permitted.
2. A treaty which becomes void because of the emergence of a new peremptory norm of general international law (jus cogens) terminates in whole, unless:
(a) the provisions that are in conflict with a peremptory norm of general international law (jus cogens) are separable from the remainder of the treaty with regard to their application;
(b) it appears from the treaty or is otherwise established that acceptance of the said provisions was not an essential basis of the consent of any party to be bound by the treaty as a whole; and
(c) continued performance of the remainder of the treaty would not be unjust.
Draft Conclusion 12
Consequences of the invalidity and termination of a treaty which conflicts with a peremptory norm of general international law (jus cogens)
1. Parties to a treaty which is void as a result of being in conflict with a peremptory norm of general international law (jus cogens) at the time of the treaty's conclusion have a legal obligation to:
(a) eliminate as far as possible the consequences of any act performed in reliance on any provision of the treaty which conflicts with a peremptory norm of general international law (jus cogens); and
(b) bring their mutual relations into conformity with the peremptory norm of general international law (jus cogens).
2. The termination of a treaty on account of the emergence of a new peremptory norm of general international law (jus cogens) does not affect any right, obligation or legal situation created through the execution of the treaty prior to the termination of the treaty, provided that those rights, obligations or situations may thereafter be maintained only to the extent that their maintenance is not in itself in conflict with the new peremptory norm of general international law (jus cogens).
Draft Conclusion 13
Absence of effect of reservations to treaties on peremptory norms of general international law (jus cogens)
1. A reservation to a treaty provision which reflects a peremptory norm of general international law (jus cogens) does not affect the binding nature of that norm, which shall continue to apply as such.
2. A reservation cannot exclude or modify the legal effect of a treaty in a manner contrary to a peremptory norm of general international law (jus cogens).
Draft Conclusion 14Footnote 63
Procedural requirements
1. A State which invokes a peremptory norm of general international law (jus cogens) as a ground for the invalidity or termination of a rule of international law is to notify other States concerned of its claim. The notification is to be in writing and is to indicate the measure proposed to be taken with respect to the rule of international law in question.
2. If none of the other States concerned raises an objection within a period which, except in cases of special urgency, shall not be less than three months, the invoking State may carry out the measure which it has proposed.
3. If any State concerned raises an objection, then the States concerned are to seek a solution through the means indicated in Article 33 of the Charter of the United Nations.
4. If no solution is reached within a period of twelve months, and the objecting State or States concerned offer to submit the matter to the International Court of Justice, the invoking State may not carry out the measure which it has proposed until the dispute is resolved.
5. This draft conclusion is without prejudice to the procedural requirements set forth in the Vienna Convention on the Law of Treaties, the relevant rules concerning the jurisdiction of the International Court of Justice and other applicable dispute settlement provisions agreed by the States concerned.
The drafting committee did not have sufficient time to consider the remaining proposals of the special rapporteur. Further, the draft conclusions indicated above have not yet been adopted by the Commission as a whole, because the special rapporteur prefers to wait until all the draft conclusions have been completed in the drafting committee before preparing a commentary, and the Commission only adopts draft articles or conclusions simultaneously with their commentary. The special rapporteur has indicated that a Fourth Report in 2019 could address miscellaneous issues, allowing the possibility for adoption of an entire set of draft conclusions with commentary on first reading.Footnote 64
Protection of the Environment in Relation to Armed Conflicts
In 2017, the Commission appointed a new special rapporteur, Marja Lehto (Finland), to serve as special rapporteur for this topic,Footnote 65 and she produced a First Report for the seventieth session.Footnote 66 That report focused principally on the protection of the environment in situations of occupied territory. Based on that report, the drafting committee provisionally adopted three draft principles reading as follows:
Draft principle 19
General obligations of an Occupying Power
1. An Occupying Power shall respect and protect the environment of the occupied territory in accordance with applicable international law and take environmental considerations into account in the administration of such territory.
2. An Occupying Power shall take appropriate measures to prevent significant harm to the environment of the occupied territory that is likely to prejudice the health and wellbeing of the population of the occupied territory.
3. An Occupying Power shall respect the law and institutions of the occupied territory concerning the protection of the environment and may only introduce changes within the limits provided by the law of armed conflict.
Draft principle 20
Sustainable use of natural resources
To the extent that an Occupying Power is permitted to administer and use the natural resources in an occupied territory, for the benefit of the population of the occupied territory and for other lawful purposes under the law of armed conflict, it shall do so in a way that ensures their sustainable use and minimizes environmental harm.
Draft principle 21
Due diligence
An Occupying Power shall exercise due diligence to ensure that activities in the occupied territory do not cause significant harm to the environment of areas beyond the occupied territory.Footnote 67
Further, the special rapporteur developed commentary for the prior draft principles that had been adopted in the drafting committee, thereby allowing the Commission to adopt a nearly complete set of draft principles.Footnote 68 The special rapporteur has indicated an intention in her Second Report to address the protection of the environment in non-international armed conflicts, as well as certain questions related to the responsibility and liability for environmental harm in relation to armed conflicts. Along with completion of work on a preamble and definitions, the special rapporteur envisaged completion of the topic on first reading in 2019.Footnote 69
Succession of States in Respect of State Responsibility
In 2017, the Commission moved the topic of succession of states in respect of state responsibility onto the current program of work and appointed Pavel Šturma (Czech Republic) as special rapporteur.Footnote 70 Generally speaking, this topic analyzes the rules on state responsibility applicable to the rights and obligations of a predecessor state, a successor state, and third states, in situations where a succession of states occurs.Footnote 71
The special rapporteur has so far produced a First ReportFootnote 72 and a Second Report,Footnote 73 which have resulted in the transmittal of several draft articles to the drafting committee. While the special rapporteur contemplated in his First Report a general rule of succession of state responsibility with exceptions, his Second Report was firmly in the camp of those who see a rule of non-succession of state responsibility when the predecessor state continues to exist, but with exceptions or special rules in some instances. This change in orientation appears consistent with the views expressed by a number of states in the Sixth Committee of the General Assembly that “considered that the principle of non-succession regarding state responsibility reflected the current law on the matter.”Footnote 74 Those states included Austria, Iran, Japan, Russia, and Vietnam.
Based on this approach, the special rapporteur advanced certain exceptions or special rules for cases of succession where a predecessor state continues to exist, where two or more states unified, or where a state dissolves into two or more states. For example, in case of a separation or transfer of part of a territory, “if the particular circumstances so require,” the obligations arising from an internationally wrongful act of the predecessor state would transfer to the successor state when the act was carried out by an organ of a territorial unit of the predecessor that has later become an organ of the successor state.
Yet the drafting committee found it difficult to make much progress on the proposals. Ultimately, it provisionally adopted just two modest draft articles. Draft Article 5, on “Cases of Succession of States Covered by the Present Draft Articles,” provides: “The present draft articles apply only to the effects of a succession of States occurring in conformity with international law and, in particular, the principles of international law embodied in the Charter of the United Nations.”Footnote 75 This draft article mirrors the approach taken in the Vienna Conventions on succession issuesFootnote 76 and in the Commission's Articles on Nationality of Persons in Relation to the Succession of States.Footnote 77 The drafting committee also adopted a draft Article 6 entitled “No Effect Upon Attribution,” which reads: “A succession of States has no effect upon the attribution to a State of an internationally wrongful act committed by that State before the date of succession.”Footnote 78
In 2019, the drafting committee will continue work on the special rapporteur's proposals. Further, according to the special rapporteur, a Third Report in 2019 “will focus on the transfer of the rights or claims of an injured predecessor State to [a] successor State.”Footnote 79 A Fourth Report in 2020 might then address procedural and miscellaneous issues, allowing for a first reading of the entire topic in 2020 or 2021.Footnote 80
Immunity of State Officials from Foreign Criminal Jurisdiction
Toward the end of the seventieth session, the Commission received the Sixth Report on “Immunity of State Officials from Foreign Criminal Jurisdiction” by its second special rapporteur for this topic, Concepción Escobar Hernández (Spain).Footnote 81 The report discussed in general terms procedural issues relating to three issues: when it is that immunity should be considered by the authorities of the forum state;Footnote 82 the acts of the forum state authorities that are affected by immunity;Footnote 83 and the determination of immunity.Footnote 84 The Sixth Report made no proposals for additional draft articles.
The Commission commenced a debate on the Sixth Report, but was not able to conclude it before the end of the session, and therefore it will continue during the seventy-first session in 2019. The special rapporteur has indicated that she will also submit for that session a Seventh Report, which will propose provisions on procedural rules relating to the immunity of State officials, and which might allow for adoption of a full set of draft articles and commentaries on first reading.
V. Other Decisions and Future Work
During the seventieth session, the Commission placed two new topics on its long-term work program: (1) universal criminal jurisdiction;Footnote 85 and (2) sea-level rise in relation to international law.Footnote 86 During the present quinquennium, the Commission may decide to place one or both of these topics on its agenda.
The first topic on “universal criminal jurisdiction” is contemplated as being pursued by appointment of a special rapporteur. The topic proposal notes:
12. The Sixth Committee has been debating the topic annually since 2009. While important progress has been made in clarifying areas of difference of view concerning universal jurisdiction during the last nine years, in other respects, progress has not been as substantial as was initially envisaged. The [African Union] as recently as January 2018, adopted a decision in which it expressed regret at the “apparent impasse” in the debate of the universality topic in the General Assembly and consequently called on the African Group in New York to “make recommendations to the Summit on how to move this discussion forward.” The lack of meaningful progress seems due, at least partially, to the political disagreements concerning the potential for selective and arbitrary application of this jurisdictional principle. Indeed, during the 2017 General Assembly debate on the issue, the overwhelming majority of delegations could agree on the need to advance the discussion on universal jurisdiction, while differing over its definition, nature, scope and limits. The same pattern can be discerned from earlier debates of the Sixth Committee dating back to October 2010.
13. In these circumstances, if focused on a limited set of core legal issues rather than the entire panoply of issues identified by States as areas reflecting their differing views …, the Commission would appear to be particularly well placed to assist States by formulating guidelines or drawing conclusions clarifying the nature, scope, limits and procedural safeguards that guide the proper application of universal jurisdiction.Footnote 87
The second topic on “sea-level rise in relation to international law” is viewed within the Commission as being best suited for a study group. If taken up, the study group no doubt will benefit from recent work by the International Law Association (ILA), which has already studied or is studying the same issues that the ILC proposes to pursue. Indeed, the topic of sea-level rise was initially examined by the ILA Committee on Baselines Under the International Law of the Sea, which stated in its final report considered at the Sofia Conference in 2012 that “the existing law of the normal baseline applies in situations of significant coastal change caused by both territorial gain and territorial loss. Coastal states may protect and preserve territory through physical reinforcement, but not through the legal fiction of a charted line that is unrepresentative of the actual low-water line.”Footnote 88
At the same time, the ILA Committee on Baselines Under International Law recognized “that substantial territorial loss resulting from sea-level rise is an issue that extends beyond baselines and the law of the sea and encompasses consideration at a junction of several parts of international law.”Footnote 89 For that reason, the ILA in 2012 established a new ILA Committee on International Law and Sea Level Rise. That Committee decided to focus its work on three main issue areas: the law of the sea; forced migration and human rights; and issues of statehood and international security. An interim Committee report, which was presented at the Johannesburg Conference in 2016,Footnote 90 focused on issues regarding the law of the sea and migration/human rights. Another report was considered at the Sydney Conference in 2018,Footnote 91 which completed the Committee's work on law of the sea issues.
Based on that report, the ILA adopted a resolution that: (1) noted “that the Committee has presented evidence of the emergence of State practice, particularly in the South Pacific region, indicating that small island States intend to maintain the baselines and limits of their current maritime zones established in accordance with the 1982 Law of the Sea Convention for the future, notwithstanding physical coastline changes brought about by sea level rise”; (2) endorsed
the proposal of the Committee that, on the grounds of legal certainty and stability, provided that the baselines and the outer limits of maritime zones of a coastal or an archipelagic State have been properly determined in accordance with the 1982 Law of the Sea Convention, these baselines and limits should not be required to be recalculated should sea level change affect the geographical reality of the coastline;
and (3) further endorsed
the Committee's proposal that the interpretation of the 1982 Law of the Sea Convention in relation to the ability of coastal and archipelagic States to maintain their existing lawful maritime entitlements should apply equally to maritime boundaries delimited by international agreement or by decisions of international courts or arbitral tribunals.Footnote 92