States had the obligation to cooperate with each other and with international organizations in protecting the atmosphere, delegations and legal advisors heard today as the Sixth Committee (Legal) continued its debate on the International Law Commission’s report.

The representative of Micronesia stressed that protection of the atmosphere was the most pressing challenge facing humankind today.  While States bickered over the many ills facing the international community, “our planet — our home — is falling apart around us”, he lamented.  Evoking the spirit of cooperation, he said his country had taken the lead among developing countries to promote the phase‑down of the production and consumption of hydrofluorocarbons (HFCs) under the Montreal Protocol on Substances that Deplete the Ozone Layer.

Japan’s representative, hailing draft guideline 5, which stipulated an obligation of international cooperation, said it was one of the most important outcomes of the Commission’s session.  Given the wide range of activities that could cause transboundary air pollution or global climate change, obligating States to cooperate with each other and with relevant international organizations for the protection of the atmosphere was a necessary rule for inclusion in the guidelines.

A number of delegations, however, pointed to the need for further improvement in the language of that draft guideline.  Viet Nam’s representative said that singling out any form of cooperation could impair the discretion of States to cooperate in a most appropriate manner.

Similarly, El Salvador’s representative said it was not enough to include just international organizations.  The problem of environmental degradation was of such relevance that other bodies, such as nongovernmental organizations and civil society, could contribute to addressing the matter.

Also needed, said China’s representative, was the Committee’s consideration of the priorities of developing countries in its treatment of the topic, a view echoed by several delegations.  The Commission should, among other things, consider developing countries’ priorities and their capacity-building in addressing atmospheric pollution.

The Committee also discussed the Study Group’s analysis and useful guidance on the most-favoured-nation clause, with many delegations expressing agreement that the 1969 Vienna Convention on the Law of Treaties should be the basis for the interpretation of investment treaties, including most-favoured-nation clauses in those treaties.  They also voiced support for the conclusion that it was for States to determine the scope of application of such clauses when negotiating bilateral investment treaties.

South Africa’s representative, however, said the inconsistencies in interpreting those clauses in bilateral investment treaties were of such concern to his country that their provisions were no longer considered as core to bilateral investment treaties.  Bilateral investment treaties were public international law instruments rather than contractual arrangements.  Therefore, the policy choices of States in concluding such treaties should be respected by investment arbitration tribunals.

Continuing the discussion of jus cogens, several speakers underscored the need for caution in treatment of the topic.  A representative of the United Kingdom acknowledged that jus cogens could be of practical assistance, especially to domestic courts, if it explained how to identify pre-existing jus cogens and the consequences of such identification.  However, the topic should be confined to the parameters of methodology.

Similarly, Israel’s representative said that, indeed, the 1969 Vienna Convention on the Law of Treaties conceptualized jus cogens as a norm of law “accepted and recognized by the international community”.  Nonetheless, that norm must undergo a thorough process in order to be successfully elevated to the status of jus cogens in countries.

The Sixth Committee also authorized the Chair of the Committee to sign and forward to the General Assembly President a letter addressing the matter of the administration of justice.

Also speaking today were representatives of India, Iran, Sri Lanka, Canada, Sudan, Poland, Spain, Thailand and Republic of Korea.

The Sixth Committee (Legal) would reconvene at 10 a.m. on Wednesday, 4 November, to continue its consideration of the Report of the International Law Commission on the work of its sixty-seventh session.

Background

The Sixth Committee (Legal) met today to continue deliberations on the first cluster of topics related to the report of the International Law Commission on the work of its sixty-seventh session.  For further background, please see Press Release GA/L/3506.

Statements on First Cluster

SARAH WEISS MA’UDI (Israel) underscored the principle of consent between parties negotiating investment agreements, including with regard to the scope of most-favoured-nation clauses in international investment agreements, as well as with matters pertaining to the consent to exclude certain provisions from the application of such clauses.  She said she did not favour an overly broad interpretation of the most-favoured-nation clause beyond the initial agreements party to it.

She went on to say that most-favoured-nation clauses should not, as a rule, expand the jurisdiction of a dispute settlement tribunal over matters beyond those explicitly set in the basic treaty, especially where the jurisdiction had been limited by means of exclusion or inclusion.  She also maintained that most‑favoured‑nation clause articles were normally excluded from allowing claimants to bypass procedural requirements.

Turning to the protection of the atmosphere, she stressed the importance of respecting and safeguarding States’ sovereignty in the context of global challenges.  The term “as appropriate”, used in guideline 5, which denoted the flexibility States enjoyed regarding their obligations, could use strengthening in the text of the draft.

Lastly, she said she shared the perspective that the 1969 Vienna Convention on the Law of Treaties conceptualized jus cogens as a norm of law “accepted and recognized by the international community.”  That norm must undergo a thorough process in order to be successfully elevated to the status of jus cogens in countries.  An expansive list of international law norms deemed as jus cogens could become counterproductive, since its concept might no longer represent the international community’s will and vision.  Questioning whether the codification of jus cogens was appropriate, she urged the Commission to “proceed with caution.”

IAIN MACLEOD (United Kingdom) said that jus cogens could be of practical assistance, especially to domestic courts, if it explained how to identify pre‑existing jus cogens and the consequences of such identification.  The topic should be confined to the parameters of methodology and be approached with caution.  On the subject of the “Most-Favoured-Nation clause”, he said the final report on the matter would be of practical utility.

He then turned to the topic “Protection of the atmosphere”, endorsing the Commission’s position to not interfere with relevant political negotiations, including those on climate change, alternatives to ozone depleting substances and long-range transboundary air pollution.  Regarding the draft guidelines included in the report, he welcomed the reference to the concept of “common concern of humankind”, although he noted that the consequences of the concept remained unclear.

CLEMENT YOW MULALAP (Federated States of Micronesia) called protection of the atmosphere “the most pressing challenge facing humankind today”.  While States bickered over the many ills facing the international community, “our planet — our home — is falling apart around us”, he stated.  Such ills had their roots in humankind’s bombardment of the planet’s atmosphere with excess gases, pollutants and other harmful substances, all of which degraded the atmosphere and set off chain reactions of catastrophic consequences around the planet.  Therefore, it was concerning that the Commission had decided to convert revised draft guideline 3, which stated that the atmosphere was a “natural resource essential for sustaining life on Earth, human health and welfare, and aquatic and terrestrial ecosystems, and hence the degradation of atmospheric conditions is a common concern of humankind”, to a preambular paragraph, stripping that text of its operative essence.

Furthermore, he continued, that language had been changed to make a factual statement rather than a normative statement, as the original language had implied.  A “common concern of humankind” as a normative statement triggered the corollary obligations of all States under international law to act individually and jointly to tackle the degradation of the planet’s atmosphere in a comprehensive and urgent manner.  He noted that his country was meeting its obligations through a variety of actions, including by taking the lead among developing countries to promote the phase-down of the production and consumption of hydrofluorocarbons (HFCs) under the Montreal Protocol on Substances that Deplete the Ozone Layer.  To date, over 100 States Parties to the Protocol had been phasing down HFCs.

XU HONG (China), commending the Commission’s overall work, emphasized that the purpose and scope of the draft guidelines on the protection of the atmosphere should be further clarified in order to help ease delegations’ concerns about the relationship between that project and the relevant existing political and legal regimes.  In addition, some crucial terms needed to be defined more clearly, such as the need to further distinguish between atmospheric pollution and atmospheric degradation.

Some types of atmospheric pollution could cause deleterious effect only to specific countries or regions, while others could cause deleterious effect on the international community, he pointed out.  The Commission should treat them differently in working out relevant provisions, and, in particular, should consider developing countries’ priorities and their capacity-building in addressing atmospheric pollution.

On jus cogens, he suggested that the Commission collect and study State practices, given the difficulty in explaining the nature and identification of that principle.  As well, a cautious approach must be adopted in referencing the limited practice of international agencies.

NAOKO SAIKI (Japan) said that, despite the Commission’s loss of influence over international law-making, it still maintained a unique and important role.  There was no other institution consisting of prominent international lawyers from academia and practitioners who represented the main forms of civilization and the world’s principal legal systems.  As the creation of rules in the modern international community accelerated the fragmentation of international law, the Commission should remain committed to identifying and codifying established and emerging international law principles.

Underscoring the importance of close cooperation between the Commission and the Sixth Committee, she said that, provided that changing the venue did not generate additional resources, holding sessions in New York could increase the Commission’s chances for interacting with Member States.  Because of the still‑unclear substance of jus cogens, she welcomed the Commission’s efforts in reviewing interpretative techniques of most-favoured-nation clauses in order to assist in the interpretation and application of those provisions.

On protection of the atmosphere, she said she valued that the concept of “common concern of humankind” had been included as part of the draft guidelines’ preambular paragraphs.  That concept had a significant legal value to objectives in question and had been referred to in several related legal documents, such as the United Nations Framework Convention on Climate Change.  Draft guideline 5, which stipulated an obligation of international cooperation, was one of the most important outcomes under that topic in the sixty-seventh session.  Obligating States to cooperate with each other and with relevant international organizations for the protection of the atmosphere was a necessary rule for inclusion in the guidelines, given the wide range of economic and other activities that could cause transboundary air pollution or global climate change.

RITI PATHAK (India) said she agreed with the conclusion of the Commission that the 1969 Vienna Convention on the Law of Treaties should be the basis for the interpretation of investment treaties, including most-favoured-nation clauses in those treaties.  She also voiced support for the summary conclusion that it was for States to determine the scope of application of such clauses when negotiating bilateral investment treaties.  Welcoming the report on the matter, she said it should guide States, arbitral tribunals and other relevant actors in the field.

Turning to the topic “Protection of the atmosphere”, she said she also endorsed the Commission’s decision to address the matter of draft guideline 3 (on the common concern of humankind) in the preamble.  Draft guideline 4, which addressed the obligation of States to protect the atmosphere, required further study and analysis.  She urged the Commission to continue to strengthen its research on relevant theories and practices relating to the topic and gradually clarify relevant guidelines.  She also welcomed inclusion of the topic “Jus cogens”, the study of which would be of interest to all.

REZA DEHGHANI (Iran) pointed out that the Commission’s work on protection of the atmosphere should include study on all sources of pollutants and substances detrimental to the atmosphere, in particular radioactive and nuclear emissions.  Similarly, regarding the omission of specific substances in guideline 2, paragraph 3, so as not to interfere with ongoing negotiations among Member States, it would have been preferable to include a “without prejudice” clause.  The replacement of the phrase “common concern of mankind” with some related paragraphs in the preamble was appropriate.

He went on to say that the phrases “common heritage of mankind” and “pressing concern of the international community” properly referred to the atmosphere in legal terms.  On the issue of cooperation, he noted that the obligation to cooperate was a vague and undefined legal concept.  The development of an international legal regime on the protection of the atmosphere would be feasible only if due consideration were given to well-established concepts in the field, namely intra-and intergenerational equity, as well as the special needs and priorities of developing countries.

AMRITH ROHAN PERERA (Sri Lanka) noted that, while the most-favoured-nation clause had assumed particular relevance as a core principle of bilateral investment treaties, it had also become one of the most vexing interpretative issues under those treaties and remained at the heart of current controversies in the field.  The report’s guidance on the consequences that could arise from particular wording in the clauses would be of great value to States in considering how their investment agreements might be interpreted and what they might take into account in negotiating new bilateral investment treaties.

Expressing agreement with several of the Study Group’s conclusions, he said the clauses’ application to dispute settlement provisions in investment treaty arbitration, rather than limiting them to substantive obligations, had brought about a new dimension to thinking about the provisions and, perhaps, consequences that had not been foreseen by parties when they negotiated their investment treaties.  He pointed out that, unless it was clearly worded or there were particular contextual circumstances, a most-favoured-nation provision could not alter the conditions of access to dispute settlement.

The topic of “Protection of the atmosphere” could not be properly discussed or developed in isolation from the scientific community, he said, commending the Special Rapporteur’s initiative to organize a dialogue with six of the world’s foremost atmospheric scientists.  Underscoring the need to address the depletion of the atmosphere, he expressed approval for the newly adopted third paragraph of the preamble to the draft guidelines, which recognized that the protection of the atmosphere from transboundary atmospheric pollution and atmospheric degradation was a “pressing concern of the international community as a whole”.  He welcomed as well the Commission’s emphasis on international cooperation under guideline 5.

WILLIAM CROSBIE (Canada) said the report of the Study Group on the most‑favoured‑nation clause provided useful background and an analytical framework for the provision’s interpretation, drawing on the Commission’s 1978 draft articles.  It confirmed that there were certain limits to the clause’s application so that it could not expand a tribunal’s jurisdiction.  Furthermore, the recommendation to include explicit language on the application of most‑favoured‑nation provisions to dispute settlement provided a practical solution for existing treaties that did not clearly address the issue.  In that respect, he suggested that a greater involvement by States in the interpretation of their treaties might be useful.

MARIA DEL PILAR ESCOBAR (El Salvador), associating herself with the Community of Latin American and Caribbean States (CELAC), expressed concern with the lack of uniformity in existing criteria around most-favoured-nation clauses and their relationship with dispute settlement provisions agreed in other treaties.  The general standards of interpretation of treaties must be applied, bearing in mind the specific circumstances of each case.

Due to the complexity of the topic “Protection of the atmosphere”, it would be useful to clarify several technical concepts, she said.  Noting her satisfaction with the definitions included in guideline 1, she also said it was still premature to see that directive as closed text, since new terms could arise and their meaning and scope could require clarification.  Proposed definitions should focus on pollution and degradation of the atmosphere as human-generated processes, since it was human activity that was responsible for that phenomenon.

She also called attention to the Spanish version of the draft guidelines, where pollution and atmosphere degradation were situations created “by man”; in the English version the term “by humans” was used, which was more appropriate.  Thus, the Spanish term “human beings” must be used, she said, requesting that a corresponding change be made.

On the obligation to cooperate in guideline 5, she recalled that, in the Rio Declaration, the international community had the obligation to cooperate in good faith and in the spirit of solidarity.  It was necessary to evoke the same standard in protecting the atmosphere.  In that regard, it was not enough to include just international organizations.  The problem of environmental degradation was of such relevance that other bodies, such as nongovernmental organizations and civil society, could contribute to addressing the matter.  There should also be specific forms of cooperation stated, as had been done in other subjects considered by the Commission.

IDREES MOHAMMED ALI MOHAMMED SAEED (Sudan) emphasized the importance of the Commission’s communications to the Sixth Committee, which made it essential for the Commission to hold some of its meetings in New York to enable the fuller participation of Member States.  That, in turn, would enhance the work of the Sixth Committee.  The resolution to be drafted in the current session should include the need to hold such meetings with the necessary provisions to do so.  He also emphasized the importance of the Commission’s interaction with other international bodies, especially with organizations from developing countries.  That was particularly important, as it was the developed countries who had defined the framework of international law.

He welcomed the Commission’s inclusion of “Jus cogens” in its programme of work and took note of the important work done on the most-favoured-nation clause.  While stressing the need to protect the atmosphere, he underscored that the Commission’s work on that topic should not interfere with other political processes.  He expressed the hope that at least part of the Commission’s seventieth session would be held in New York.

ANDRZEJ MISZTAL (Poland) recalled that, during the Committee’s debate in 2014, his country had proposed as a new topic of work for the Commission the “duty of non-recognition as lawful a situation created by a serious breach by a State of an obligation arising under a peremptory norm of general international law”.  Consideration of the topic could be useful for States and produce feasible and concrete guidelines.

The interpretative techniques reviewed in the Study Group’s report on the most-favoured nation clause could significantly assist in the interpretation and application of the provision, he said.  Also welcomed was the Commission’s position on ejusdem generis; the scope of the treatment that could be claimed had to be determined on a case-by-case basis.  Consequently, there was no basis for concluding that there would be a single interpretation of a most-favoured-nation provision applicable across all investment agreements.

Recalling the provisional adoption of three draft guidelines on the protection of the atmosphere, he noted the lack of guidelines covering the general obligation of States to protect the atmosphere from pollution.  The obligation of international cooperation, which was included in draft guideline 5, was the natural consequence of the general obligation, which should also be covered by the set of guidelines.

MARIA PALACIOS (Spain), welcoming the decision to include jus cogens in the Commission’s programme of work, underscored the need to preserve the open and flexible character in the process of making those rules, which could be questioned if a list of those rules was to be drawn.  On the most-favoured-nation clause, she said that, while the report would be of use to future negotiators of that type of clause, as well as to arbitral tribunals, “this kind of Report” did not seem to fit within the functions of the Commission, namely to contribute to the progressive development and codification of international law according to the terms set forth in its Statute.

Turning to the topic “Protection of the atmosphere”, she welcomed the use of the expression “concern of the International Community as a whole”, noting that it was clearly more sound in international law.  While not having significant objections to the preambular paragraphs, she offered alternative language.  On draft guideline 1, she welcomed the focus on human activities with respect to definitions for “air pollution” and “atmospheric degradation”.  However, she questioned the existence of the transboundary element in the concept of “air pollution”, noting that that element was not present in the concept of “atmospheric degradation”.

VILAWAN MANGKLATANAKUL (Thailand) said that, in today’s interdependent world, international economic agreements — bilateral investment treaties or free trade agreements — played an important role in foreign relations.  Analysis and useful guidance on the interpretation of most-favoured-nation clause provisions — key stipulations in trade and investment treaties — would provide greater clarity for policymakers, negotiators and practitioners in the field.

As a point of departure, he continued, the Vienna Convention on the Law of Treaties posed particular challenges in the interpretation of investment agreements when considering investor-State arbitration.  To avoid dispute settlement tribunals that interpreted the most-favoured-nation clauses on a case‑by‑case basis, States should clarify in treaty language whether those clauses encompassed dispute settlement provisions.

He voiced his support for the Commission’s work on protection of the atmosphere, in particular raising the visibility of the issue and highlighting the fact that the atmosphere’s protection required coordinated actions by the international community.  The Commission should continue its work on the matter in a constructive manner with flexibility, given the different views and approaches expressed.

MAHLATSE MMINELE (South Africa) said he endorsed the Study Group’s objective to identify trends in the interpretation of most-favoured-nation clauses that would provide guidance for treaty negotiators, policy makers and practitioners in the area of investment.  The inconsistencies in interpreting those clauses in bilateral investment treaties were of such concern to his country that it no longer considered their provisions as core to bilateral investment treaties, even while they were a necessary part of managing relations between States at the level of multilateral trade.  Bilateral investment treaties were public international law instruments rather than contractual arrangements.  Therefore, the policy choices of States in concluding such treaties should be respected by investment arbitration tribunals.  At the same time, States must be able to understand the consequences that might attach to particular wording in most-favoured-nation clauses to accurately express their policy choices in treaties.

On the topic “Protection of the atmosphere”, he said he agreed with the Commission’s approach to the topic so as not to interfere with political negotiations and without prejudice to existing international law principles, such as the polluter-pays principle, the precautionary principle and the principle of common but differentiated responsibility.  The provisional adoption of draft guidelines, including a preamble, was a welcome step forward.  In particular, the inclusion of cooperation in enhancing scientific knowledge relating to the causes and impacts of atmospheric pollution and atmospheric degradation was also welcomed.  He encouraged the Commission to continue distilling existing international law principles relating to protection of the atmosphere to serve as an accessible, understandable and coherent backdrop against which the political processes of creating new norms could take place more expediently.

VU MINH NGUYEN (Viet Nam) said that, as a capital importing country, Viet Nam had concluded over 80 bilateral investment agreements and dozens of free trade agreements with an investment chapter.  Most agreements contained the most‑favoured‑nation clause as a standard.  Many of those provisions were worded in a general way and were subject to a large extent to interpretation by the parties and arbitrators when disputes arose.

Noting the conflicting views with regard to its interpretation, he said some of the approaches had “more or less” steered away from the rules of treaty interpretation embodied in the Vienna Convention on the Law of Treaties.  That diversion could lead to a result that contracting parties did not intend at the time of treaty conclusion.  He agreed with the conclusion that the interpretation exercise should be undertaken on the basis of the customary rules of treaty interpretation codified in articles 31 and 32 of that Vienna Convention.

Turning to the topic “Protection of the atmosphere”, he concurred with the statement on the first paragraph on the general obligation to cooperation.  However, the second paragraph of guideline 5 presented some difficulty, as it singled out one form of cooperation at the expense of others.  Singling out any form of cooperation could impair the discretion of States to cooperate in a most appropriate manner.  The form of the project should be guidelines, rather than principles or guiding principles; the latter term could connote some legal obligations on States, the very essence of which had been pre-empted by the Commission.

RHEE ZHA-HYOUNG (Republic of Korea) said the final report on the most‑favoured‑nation clause was both useful and relevant in practical terms.  On protection of the atmosphere, he welcomed the Commission’s adoption of the preamble and guidelines 1, 2 and 5 with related commentaries.  He took note of the preamble’s overarching acknowledgement of the atmosphere’s importance, referencing its functional aspect, and the fact that its protection from atmospheric pollution and degradation was a “pressing concern of the international community as a whole”.

He also welcomed the narrow definition of “atmospheric pollution”, in line with existing treaty practice, and appreciated efforts to define “energy” for the purpose of further clarification.  While he considered draft guideline 5, with its emphasis on international cooperation, as core to the entire set of draft guidelines, he expressed doubt about the expression “States have an obligation to cooperate”, noting that “States shall cooperate” was more frequently used in other treaties.