Remarks by Mark Simonoff, Minister Counselor, U.S. Mission to the United Nations, to the UN General Assembly's Sixth Committee (Legal), on the Report of the International Law Commission

Mark Simonoff, Minister Counselor, U.S. Mission to the United Nations

New York, NY

October 26, 2011

AS PREPARED

Thank you, Mr. Chairman. My government appreciates your efforts in guiding the work of this Committee and welcomes the opportunity to submit a few observations on topics considered by the International Law Commission at its 63rd Session.

The United States recognizes that universal respect for international law is essential to orderly and peaceful relations among States and commends the International Law Commission on its contributions to the progressive development and codification of international law. We would like to convey our special thanks to the Chairman of the Commission, Mr. Maurice Kamto for his fine stewardship. We would also like to congratulate Ms. Concepcion Escobar Hernandez and Mr. Mohammad Bello Adoke on their election to the Commission. We wish to thank the Special Rapporteurs for the topics discussed at the Commission’s past session for the manner in which they have diligently guided the Commission on important – and complex – topics. We also would like to thank all of the Commissioners who have served during this past quinquennium for their outstanding work – over the last five years, the Commission has completed a number of longstanding projects and begun work on several important new topics. We thank all of the Commissioners for their outstanding service and the United States looks forward to continuing to work closely and constructively with the new Commission that will be elected next month.

We are also pleased to recall that the Commission recognized its sixtieth anniversary during this past quinquennium in 2008. As noted by several ILC Commissioners and government representatives during the ILC’s sixtieth anniversary commemorative conference, the work of the Commission benefits from a strong interactive relationship with states and international organizations. In that regard, we are pleased that the Commission has in chapter III of its report requested views from governments on several of the ongoing topics on issues of particular interest, we plan to provide thoughts on these issues during this Sixth Committee session, and hope to be able to provide additional material in the months ahead and as consideration of these topics continues.

Mr. Chairman, I will comment today on some of the issues connected with the first cluster of items on the Committee’s agenda.

New Topic Proposals

We appreciate the Commission’s request for state views on the new topics that the Commission has added to its long term program.

First, with respect to the topic “Formation and Evidence of Customary International Law,” the United States extends its compliments to Sir Michael Wood for his excellent paper on the topic and we are supportive of adding this topic to the Commission’s long-term program. The paper sets forth an excellent road map for how the Commission might tackle this issue and also demonstrates that there are still many unsettled questions in this area that would benefit from the attention of states and the Commission. In our view, the paper insightfully touches on a number of important issues that merit additional thinking, such as the sorts of acts that count as state practice, the relationship between state practice and opinio juris, and the role that treaties play in the formation of customary law. We also think it would be particularly useful to collect and study the approaches of national courts or other municipal organs to customary law formation questions. Finally, we echo the paper’s conclusion that flexibility remains an essential feature in the formation of customary law and therefore it is critically important that the results of the Commission’s work not be overly prescriptive.

As suggested in the proposal, we think an appropriate outcome could be a series of propositions or practice pointers, with commentaries.

With respect to the topic “Protection of the Atmosphere,” we thank Commissioner Murase for his work in preparing the proposal. The United States supports strong international protection of the atmosphere. The United States is a party to many treaties governing air pollution, and one of this Administration’s first actions in the international environmental arena was to push for a global treaty on mercury. Additionally, there are a number of treaties, regional and global, that address specific issues related to air pollution and the effects of human emissions. Given that the current structure of law in this area is treaty-based, focused, and relatively effective, and given the existence of ongoing negotiations by States that seek to address evolving and very complex circumstances, we think it best not to attempt to codify rules in this area at this time.

With respect to the topic “Provisional Application of Treaties,” the United States compliments Professor Gaja on his proposal to examine this topic. Professor Gaja has highlighted an interesting divergence of views on the question of whether provisional application should be understood as imposing an international legal obligation. He notes that recent arbitral panels have supported the view that provisional application is a matter of legal obligation, not merely a signal of a State’s non-legally-binding intent to comply with certain provisionally applied portions of a treaty. The United States looks forward to studying the material developed by Professor Gaja’s work. With regard to the issue of whether States should give notice prior to terminating provisional application, the United States urges caution in putting forward any proposed rule that could create tension with the clear language in Article 25 of the Vienna Convention on the Law of Treaties regarding a State’s ability to terminate provisional application of a treaty. Finally, we think a decision on the final form that this project should take is best left to a later date.

As regards the proposed new topic, the “Fair and Equitable Treatment Standard in International Investment Law,” we thank Commissioner Vasciannie for his work on the proposal thus far. The Commission has identified an interesting topic that could benefit from further study and that could lead to the identification and inventory of different formulations of this standard in numerous investment treaties. We note that other international organizations, including the Organization for Economic

Co-operation and Development (OECD) and the United Nations Conference on Trade and Development (UNCTAD), have previously looked into this question in depth and their work may prove to be a useful point of departure and reference for any work the Commission pursues on this topic.

We caution that, in light of the different formulations that the standard embodies in the various investment treaties, we think it will be important for the Commission to avoid efforts to restate or interpret the intentions of the treaty parties that have adopted these standards and to instead concentrate its efforts on describing the different formulations that treaty parties select when referring to this standard. Toward this end, we recommend that as the Commission carries out its inquiry into this standard, it not necessarily limit itself to the issues currently identified. Moreover, as the Commission notes, much like Most Favored Nation clauses, the fair and equitable treatment standards embodied in treaties tend to differ considerably in their structure, scope and language and thus resist a uniform approach. As such, we welcome the Commission’s acknowledgement that the mere inclusion of this standard in over three thousand investment treaties does not, in and of itself, demonstrate that the fair and equitable treatment standard is a part of customary international law. Finally, given the nature of these provisions, the Commission likely will not be able to develop uniform rules or a definitive statement on the meaning of the standard. That said, we believe it is useful for the Commission to survey and describe current state practice and jurisprudence, which can serve as a useful resource for governments and practitioners who have an interest in this area.

We also thank Commissioner Jacobsson for her work in preparing a proposal on the topic “Protection of the Environment in Relation to Armed Conflicts.” We appreciate the work of Commissioner Jacobsson and support the Commission’s efforts to identify ways to strengthen international humanitarian law. At the same time, the proposed topic implicates many subject areas, including -- as the Commission’s report highlights -- international humanitarian law, international criminal law, international environmental law and human rights law. Given that the topic is very broad in scope, there are questions as to whether the topic is sufficiently focused so as to benefit from the expertise of the Commission. We also note that the Commission’s proposal identifies a previous lack of state support for pursuing this topic—a conclusion the International Committee of the Red Cross also reached earlier this year when it found that a number of States did not consider further work in this area to be a priority at this time.

Reservations to Treaties

The United States congratulates the Commission on its work to conclude the Guide to Practice. Professor Pellet has devoted countless hours of his time to this project and he should be commended for bringing this work to a conclusion after so many years. Our understanding is that the Guide to Practice will not be up for formal consideration until next year. Nevertheless, we think it is important to emphasize that state practice on the consequences of an invalid reservation remains quite varied and, as a result, section 4.5.3 – one of the more controversial elements of the Guide -- should not be understood to reflect the consistent practice on the part of States. Indeed, the United States continues to find the approach articulated in that section difficult to reconcile with the fundamental principle of treaty law that a state should only be bound to the extent it voluntarily undertakes a treaty obligation. We are still in the process of examining the final provisions of the Guide as well as its extensive commentary and look forward to addressing it more comprehensively when the Sixth Committee formally considers it next year.

The United States also notes the Commission’s recommendations that the General Assembly consider establishing an “observatory” on treaty reservations within the Sixth Committee, as well as a “reservations assistance mechanism.” The observatory presumably would be similar to that established within the Council of Europe’s Committee of Legal Advisers on Public International Law. The United States has participated actively as an observer in that process and believes that it has been quite valuable. Based on that experience, we think additional focus on such issues in the Sixth Committee and in other regional or subregional settings can be useful. Coordination would of course be desirable to the extent possible to avoid unnecessary overlap in the work of such observatories.

With regard to the “reservations assistance mechanism,” the United States is interested to learn more about this proposal, including the status of the proposals emerging from the mechanism. In general, we question whether an independent mechanism, consisting of a limited number of experts that would meet to consider problems related to reservations, is appropriate to inject into a process that fundamentally is to take place between and among states. Further, we are concerned about any implication that the proposals resulting from the mechanism could in any way be seen as compulsory on the states requesting assistance.

Responsibility of International Organizations

I now turn to the newly adopted draft articles on the Responsibility of International Organizations. The United States wishes to thank Professor Gaja, the Special Rapporteur on this topic, for his work in undertaking and overseeing this topic and bringing it to completion. Without doubt, the draft Articles are a significant contribution to international legal thinking. We also wish to express our gratitude for the valuable views – many of which we shared - provided by the United Nations Secretariat and other international organizations, such as the International Monetary Fund and the World Bank, which have contributed and will continue to contribute to thinking on this topic.

We would like at this point to limit ourselves to making three general comments.

First, we are pleased that the Commission has included a General Commentary introducing the draft Articles, which indicates the scarcity of practice in this area and reflects that much contained in these draft articles falls into the category of progressive development rather than codification of the law. Disagreements do exist about whether many of these articles currently state the law in this area. Hence, we agree with the Commission’s assessment that the provisions of the present draft articles do not have the same authority as the corresponding provisions on State responsibility. That assessment must be kept in mind when considering the cross-references from these draft articles to the articles and commentary on State responsibility, and whether the draft articles sufficiently reflect the differences between international organizations and States.

Second, we also agree with the General Commentary that there exists great diversity among international organizations, which of course operate at the global, regional, sub-regional, and even bilateral levels, with important structural differences, and an extraordinary range of functions, powers, and capabilities. Given these differences, the principles described in some of the draft articles likely do not apply to international organizations in the same way that they apply to States, for example those articles addressing countermeasures and self-defense. Indeed, for all of the draft articles, the principle underlying the lex specialis rule set forth in Article 64 is of extraordinary importance. In connection with this principle, it may be necessary to give further thought to the differences in the way principles of responsibility may operate as among an international organization and its members, as opposed to how those principles operate in other settings.

Third, we support the recommendation of the Commission that any discussion of whether the draft articles should be transformed into a Convention should be deferred. Doing so would allow time for the development of further practice of international organizations relevant to the draft Articles.

We appreciate the significant work that the Commission has undertaken on this topic.

Thank you, Mr. Chairman.

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