Sixth Committee Research Articles

State In The Realities Of International Criminal Acts

The article examines and assesses a) the departure of the UN Sixth Committee from the initial installation of the introduction of the Nuremberg principles into the system of international law jus cogens; b) the flawedness of the exclusion of the very possibility of qualifying the behavior of the state as internationally criminal is substantiated; c) the methodologically vulnerable aspects of the study of the topic of state responsibility for international criminal acts in the International Law Commission are indicated and possible ways of overcoming them are proposed.

The Role of the Practices of the International and Regional Human Rights Treaty Bodies in the Development and Codification of the Rules of International Law – The Reservation to Treaties as a Model

Although the rules contained in the three Vienna Conventions of 1969, 1978, and 1986 still constitute the framework for practice in the field of reservation to treaties, the development of the international community and with it the international system for the protection of human rights revealed a lack of clarity and some gaps in the Vienna regime of reservation which cannot be overlooked. Based on this, the European Court of Human Rights took the initiative and provided solutions to the practical difficulties imposed by previous conventions as well as developed new practices. Despite the opposition of several actors states to some of these practices, the great support given to the European monitoring bodies by the Inter-American Court of Human Rights and the United Nations human rights treaty bodies, in addition to the clarifications provided by the Human Rights Committee (HRC) concerning ‘severability’ theory to the International Law Commission (ILC), led to established practices of these bodies being codified. Codification took the form of guidelines in the ‘Guide to Practice on Reservations to Treaties’ which was adopted at the 63rd session of the ILC in 2011 after extensive study and debates, lasting nearly two decades, between members of the International Law Commission and within the Sixth Committee of the General Assembly.

Prohibition of massive and serious pollution of marine environment as a jus cogens. Identification, legal bases and consequences in view of the recent work of the International Law Commission

Taking into account the progressive development of international law in recent decades relating to the protection of environment it is remarkable that until recently international courts and tribunals took a rather restrictive approach concerning reference to the hierarchy of norms. This is in stark contrast to international human rights law as some of its key rules have already been identified as jus cogens. Thus, drawing from these developments there is a need for recommencing the debate concerning the existence of peremptory norms relating to the protection of the environment. At the normative level allocating the jus cogens logic to this area can certainly bring the needed structure of community interest, instead of the reciprocal paradigm and consequently influence more strongly future normative development of this branch of law. The article evaluates whether specific obligations to protect the marine environment can be considered as a peremptory norm of general international law. The current work of the International Law Commission and discussion on its reports in the United Nations General Assembly Sixth Committee are used as tools for appraisal of the state of the law in this respect. It is undeniable, that obligations to protect the marine environment reflect fundamental values of the international community, which are universally applicable. As a result, the normative weights of these obligations clearly advocates for the recognition of peremptory norm status of particular prohibitive rules concerning protection of the marine environment.

Resolution 76/120 on Strengthening and Promoting the International Treaty Framework (U.N.G.A.)

On December 9, 2021, the UN General Assembly adopted resolution 76/120, “Strengthening and Promoting the International Treaty Framework,” by consensus. The resolution had been forwarded to the General Assembly for consideration after having been adopted by the General Assembly's Sixth (Legal) Committee on November 18, 2021 by consensus, in line with its traditional approach to decision-making. The negotiations of the resolution were coordinated (chaired) by Brazil and Singapore.

THE OSSIFIED DEBATE ON A UN CONVENTION ON STATE RESPONSIBILITY

AbstractThis article examines the developments on future action concerning the 2001 ILC Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) in the Sixth Committee of the UN General Assembly. It reviews the past 20 years, from the presentation of the final draft at the 56th session in 2001, to the most recent debate at the 74th session in 2019. In scrutinising the procedural actions taken over the relevant period, it argues that the ARSIWA have ossified in the Sixth Committee even as they have continued to gain authority through application in practice. This ossification is due not only to divisions amongst delegations on future action but also to disagreements on a select number of provisions. Whilst these substantive issues have narrowed, debate is made fruitless by entrenched positions that do not take account of the application of the ARSIWA in practice.

Highlights from the Office of the Chief State Law Adviser (International Law)

In 2019, the Office of the Chief State Law Adviser (International Law) proceeded to implement its mandate to provide advice on international law to the South African government and to participate in international legal fora, including at the International Court of Justice, the Permanent Court of Arbitration, the African Commission on Human and Peoples’ Rights, the United Nations Commission on International Trade Law, the Sixth Committee of the United Nations General Assembly, the Hague Conference on Private International Law, the International Institute for the Unification of Private International Law (UNIDROIT), the Hague International Space Resources Governance Working Group, and the Antarctic Treaty System. The Office also participated in international conferences on marine biological diversity of areas beyond national jurisdiction, and international cooperation in the investigation and prosecution of international atrocity crimes. In addition to an international study tour, the Treaty Section of the Office continued its function as the official custodian of the South African Treaty Collection, as well as national reports that South Africa submits in terms of treaty obligations. The Foreign Service Act 26 of 2019 was passed by Parliament on 19 November 2019.

Analysis Of States’ Comments On International Law Commission’s Reports On Jus Cogens In Sixth Committee Of United Nations General Assembly

At its second session, in 1947, The International Law Commission was established by the General Assembly with a view to give effect to Article 13, paragraph 1(a), of the charter of the United Nations to “initiate studies and make recommendations for the purpose of encouraging the progressive development of International law and its codification. Since its inception the International Law Commission has pursued very focused research work and has presented many draft treaties on various topics of international law, which in the most cases have subsequently bec0me skeleton of many treaties passed by United Nations General Assembly. At any given point of time the International Law Commission is always working on some forthcoming proposed international conventions. As a matter of procedure the commission every year send a report of its’s work to the United nations General Assembly. These yearly reports of the commission are discussed in the legal committee of the General Assembly, which is famously known as Sixth Committee (Legal) of the United Nations General Assembly. In sixth committee meetings legal members of all States issue their statements expressing their country’s opinions on the Commission’s work on its various ongoing projects to formulate drafts for the proposed international treaties which would come in future. States generally express their view points on all such projects. A careful analysis of these Statements issued by the States’ in the Sixth Committee, can provide an insight in the inclination of the States toward such forthcoming treaties. The vocabulary which these legal diplomats use to express their country’s opinion can provide idea whether a country is positive and receptive for any particular international treaty or the country has antagonistic view point about a draft treaty. These Statements are very good for the purpose of research on international law. These provide a clear idea that what aspects related to an international law problem are weighing with which kind of countries. A careful analysis can show that how priorities of the country’s are different and sometime clashing on the basis their economic and military might, their historical experiences and geographical set-ups. In the present report nearly 200 students of UPES Law School (B.BA.LL.B. Corporate Law_ 2017 Batch (B1&B2) and B.Com.LL.B. Taxation Law_ 2017 Batch (B1&B2)) have analysed statements issued by the States in Sixth Committee in its four annual sessions (71st session to 74th session) where the annual reports of International Law Commission’s works related to four annual sessions of the commission were discussed. The students have focussed only on States’ comments on the commission’s work on proposed international convention on the Jus Cogens (Pre-emptory Norms of International law).

Role of the Sixth Committee and International Law Commission in International Law-Making

Role of the Sixth Committee and International Law Commission in International Law-Making

The Work of the Sixth Committee of the United Nations General Assembly in 2018 and 2019

The present instalment is the next in a series of articles reviewing the activities of the Sixth (Legal) Committee of the General assembly, since 2011.

Introduction to the Symposium on a Way Forward

This article introduces the special issue of the African Journal of International Criminal Justice (October 2020) on the Draft Articles on the Prevention and Punishment of Crimes against Humanity, as adopted on second reading during the 71st (2019) session of the International Law Commission (ILC), and submitted to the United Nations General Assembly with a recommendation for States to either elaborate a convention in the General Assembly or to convoke a diplomatic conference on the basis of the draft articles. The authors provide a useful overview of the ILC topic selection process, explain the historic and contemporary significance of the ILC’s inclusion of the topic crimes against humanity to its current program of work given the current gap in the law of core international crimes and the generally positive response from States in the Sixth Committee. The conclusion summarizes the important contributions by some leading scholars and practitioners drawn from different countries and regions of the world on the ILC draft articles on the prevention and punishment of crimes against humanity.

Gender and the ILC’s 2019 Draft Articles on the Prevention and Punishment of Crimes Against Humanity

The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity document is the latest international instrument to address gender-based crimes under international law and the first to do so outside the context of international courts. The elaboration of a treaty on crimes against humanity provides a critical opportunity to affirm that gender-based crimes are among the gravest crimes under international law. This article examines discussions on the meaning of the term ‘gender’ under the ILC’s Draft Articles, with reference to the discussions two decades prior on the definition of ‘gender’ in the Rome Statute of the International Criminal Court, the basis for the Articles’ consideration of sexual and gender-based violence. It then turns to the ILC consultation process, and the 2019 discussion of the ILC’s Draft Articles in the Sixth (Legal) Committee of the United Nations General Assembly on the term ‘gender’. Additionally, it considers a number of concerns raised by States and civil society on the definition of some of the gender-based crimes included in the Draft Articles and concludes by arguing for a comprehensive gender analysis of all of the Draft Articles.

An Analysis of State Reactions to the ILC’s Work on Crimes Against Humanity

The international community has been engaged with the topic of crimes against humanity since the International Law Commission (ILC) began work on it in 2013, with a view to draft articles for a future convention. Between 2013 and 2019, 86 States as well as several entities and subregional groups made comments on the ILC’s work at the United Nations Sixth Committee or through written comments to the ILC. This article is the culmination of the Whitney R. Harris World Law Institute’s work cataloguing and analysing States’ comments by assigning each statement to one of five categories – strong positive, positive, neutral, negative, and strong negative – examining both specific words and the general tenor of the comments. This article analyses the development of States’ reactions to the ILC’s work over time, as well as specific issues that frequently arose, observing that there is a pattern of growing support from States to use the ILC’s Draft Articles on Prevention and Punishment of Crimes Against Humanity as the basis for a new convention.

Unlocking the Sixth Committee’s Potential to Act for Crimes Against Humanity as It Did for Genocide

Unlocking the Sixth Committee’s Potential to Act for Crimes Against Humanity as It Did for Genocide

General Principles of Law: The First Debate within the International Law Commission and the Sixth Committee

Abstract Continuing its work on the sources of international law, the International Law Commission decided, at its seventieth session, to include the topic “General principles of law” in its current programme of work. By taking up the topic, the Commission aims to shed light on various aspects of this source and provide guidance to States, international organizations, courts and tribunals and all others that may be called upon to deal with general principles of law. The present article provides an overview of the first debate on the topic that took place within the International Law Commission and the Sixth (Legal) Committee of the UN General Assembly in 2019, focusing on certain key issues that will be central to the treatment of the topic.

Rights, Gifts, Repair

Rights, Gifts, Repair

India’s Counter-Terrorism Diplomacy at the United Nations: Progress and Problems

This paper analyses India’s counter-terrorism diplomacy at the United Nations and argues that it is based on five pillars namely, normative, coercive, legal, compliance and domestic implementation, and promotion of international cooperation. The normative pillar elucidates India’s stand on de-legitimisation of terrorism, the root cause approach and sectoral versus comprehensive approach, whereas the coercive pillar divulges India’s position on counter-terrorism sanctions and the use of force. The legal measure explains India’s contribution to the development of international legal framework against terrorism through its sponsoring, co-sponsoring, draft proposal and consensus-building initiatives. Methodologically, it is based largely on the analysis of the primary archival sources, speeches of Indian delegates at the UN General Assembly, its Sixth Committee, and India’s national reports submitted to the UN Counter-Terrorism Committee and 1540 Committee. By analysing India’s counter-terrorism diplomacy at the United Nations, this paper seeks to spark a discourse among researchers working in this field with cases of India and other states as well, and pave the way for further researches on India’s counter-terrorism diplomacy at the United Nations and comparative studies with cases of other states. It concludes with observations that state sovereignty remains at the core of India’s counter-terrorism diplomacy and given the divergence of preferences of states, India’s diplomatic endeavour could not yield desired results.

The status of the UN Watercourses Convention: does it still hold water?

ABSTRACT When the UN General Assembly adopted the Watercourses Convention in 1997, it was heralded as a major milestone in the evolution of international water law. Yet, more than 20 years later and five years since it came into force, enthusiasm for the instrument appears to have waned. Based on patterns in the UNGA vote and assorted ratifications, and statements of various delegates to the UN’s International Law Committee, Sixth Committee and General Assembly, positions on the convention’s text are explored to uncover possible reasons for its diminishing appeal. Other externalities are also considered in terms of the convention’s viability.

Rising Powers and International Organisations: The Case of China’s Counter-terrorism Strategy at the United Nations

This article illustrates China’s counter-terrorism strategy at the United Nations (UN), analyses its cornerstones and underscores changing patterns. On this basis, it also seeks to make some broader observations about how rising powers behave in international organisations and to highlight their attitudes towards the liberal international order. It considers Chinese positions in the debates in the General Assembly (1972–2018), its Sixth Committee and the Security Council (since the early 1990s) and identifies four pillars of China’s counter-terrorism strategy. These include norm entrepreneurship, diplomatic measures, promotion of international cooperation and domestic measures to fulfil obligations emanating from UN resolutions, conventions and declarations. It shows how China has shaped the discourse on terrorism at the UN and how its counter-terror narratives and advocacy have been and are being shaped by the discourse among states and competing blocs like the Organization of Islamic Conference over this period. It concludes with the observation that, despite changes in its strategy in recent years, the defining principles of China’s counter-terrorism strategy, such as respect for state sovereignty and non-interference in internal affairs, have not eroded. Changes like accepting that the UN must play a ‘central coordination role’ in international counter-terrorism should be regarded as a further extension of China’s zeal to maintain the international order because the UN is a defining pillar of the present international order.

70 Years of the International Law Commission, Its Future Role in the Changing Landscape of International Law and the Small-Developing States Nexus

The International Law Commission (ILC) in its 70 illustrious years has been credited with its acclaimed pivotal role in the progressive development of international law and its codification. However, given that the principle of consensus underpins the progressive development of international law and its codification, how much of this process has involved and incorporated the perspectives and needs of Small and Developing States? In the immediate aftermath of commemorating the 70th Anniversary of the ILC, this paper measures the level of participation by Small and Developing Sates and examines the future role of the ILC through the lens of its relationship with the Sixth Committee of the United Nations General Assembly. It asserts that the envisioned symbiosis and optimal actualization of the extensive engagement principle in the progressively development of international law and its codification is being inhibited by the current working relationship between the ILC and the Sixth Committee, coupled with the lack of resources and capacity on the part of Small and Developing States.

70 Years of the International Law Commission, Its Future Role in the Changing Landscape of International Law and the Small-Developing States Nexus

The International Law Commission (ILC) in its 70 illustrious years has been credited with its acclaimed pivotal role in the progressive development of international law and its codification. However, given that the principle of consensus underpins the progressive development of international law and its codification, how much of this process has involved and incorporated the perspectives and needs of Small and Developing States? In the immediate aftermath of commemorating the 70th Anniversary of the ILC, this paper measures the level of participation by Small and Developing Sates and examines the future role of the ILC through the lens of its relationship with the Sixth Committee of the United Nations General Assembly. It asserts that the envisioned symbiosis and optimal actualization of the extensive engagement principle in the progressively development of international law and its codification is being inhibited by the current working relationship between the ILC and the Sixth Committee, coupled with the lack of resources and capacity on the part of Small and Developing States.