BIG AND INFLUENTIAL STATES

74TH SESSION REPORT

France
74th Session of Sixth Committee 2017

It should be noted that the draft 23 conclusions raise on the merits various questions to which our
written observations will have the opportunity to return in detail. Four points deserve to be
pointed out now.

First of all, the French delegation wonders how the draft conclusion intends to relate to the
Vienna Convention on the Law of Treaties. The draft conclusion seems indeed, on certain
fundamental points, to depart from the terms of the Convention. This is the case with conclusion
No. 2, relating to the definition of jus cogens, or conclusion No. 21, which proposes a procedural
regime for identifying these standards. On these points, clarifications seem necessary in the
interest of all States, parties or not to the 1969 Vienna Convention.

Next, it is necessary to return to what the draft conclusions call, in our opinion improper, the
"foundations" of jus cogens. Conclusion 5, paragraph 2, raises a serious legal difficulty in this
regard since it creates a disconnect between a norm of jus cogens and its necessarily customary
origin. In the view of the French delegation, a general principle simply cannot serve as the
"foundation" for a norm of jus cogens.

Another cause for concern is the way in which the question of evidence is viewed in conclusion
8. Because of the considerable legal effects attached to the norms of jus cogens, the issue should
be treated more rigorously and the threshold of proof should be raised significantly. In particular,
it seems to us unreasonable, and inconsistent with practice, to consider that a simple resolution
adopted by an international organization can be considered as evidence of the imperative nature
of a standard of international law.

Finally, France questions the future of the draft conclusions, as well as the status of the text. Is
this a doctrinal exercise, in which case it would be difficult to understand the inclusion of a
"procedural" conclusion, such as conclusion 21? Are these rather recommendations addressed to
States? In the opinion of my delegation, it would be very useful, in order to ensure that States
have a good understanding of the intentions of the Commission, to unravel, in the text, what
comes under the codification of what comes under progressive development .
Date Time Speaker Code Rating
Novemb 10:51 am- Mr  The draft conclusion seems indeed, on certain Strong 1
er 1 2019 11:07 am Francois fundamental points, to depart from the Negative
Alabrune terms of the Convention
 On these points, clarifications seem Strong 1
necessary in the interest of all States, Negative
parties or not to the 1969 Vienna Convention.
 In the view of the French delegation, a
general principle simply cannot serve as Strong 1
the "foundation" for a norm of jus cogens. Negative
 In particular, it seems to us unreasonable,
and inconsistent with practice, to consider Strong 1
that a simple resolution adopted by an Negative
international organization can be considered
as evidence of the imperative nature of a
standard of international law.

THE UNITED KINGDOM OF GREAT BRITAIN AND

NORTHERN IRELAND
74th session of sixth committee 2019

The United Kingdom is of the view that In relation to the draft conclusions and commentary
thereto adopted on first reading by the Commission this year, for the reasons articulated in its
2017 statement on this topic, draft conclusion 3 (or draft conclusion 2 as it was at the time) is at
best superfluous, and at worst unhelpful. It would be better to drop this provision from the
conclusions. The rationale underpinning jus cogens is a controversial and essentially theoretical
matter which the United Kingdom does not believe it is necessary or helpful for the Commission
to try to address.

Having reviewed the commentary to draft conclusion 16, the United Kingdom remains of the
view that there is insufficient State practice to support the assertion that a State can refuse to
comply with a binding UN Security Council resolution on the basis that it is in breach of a jus
cogens norm.
 Ultimately, the Commission opted to include, as an annex to the conclusions, a non-exhaustive
list of norms that the Commission has previously referred to as having that status. The approach
adopted by the Commission on first reading is preferable to that proposed by the Special
Rapporteur. Nevertheless, the United Kingdom still has concerns, as any use of this illustrative
list necessarily must carefully consider the quality and consistency of the Commission’s prior
work which referred to a norm as having peremptory status, and then consider developments
thereafter, if the aim is to assess the contemporary status of the norm in question.

Date Time Speaker Statement Code Rating

06.11.2019 10:22 AM -
10:30 AM MR. IAIN  the United Kingdom is concerned Negative 2
MACLEOD
that, no matter how it is described,
the status of the list will cause
confusion and will be treated by
some readers as exhaustive and/or
a codification of existing jus cogens Strong 1
Negative
norms.

 The rationale underpinning jus cogens

is a controversial and essentially
theoretical matter which the United
Kingdom does not believe it is
necessary or helpful for the
Commission to try to address.

UNITED STATES OF AMERICA

74th Session of sixth committee 2019
KERSTI KALJULAID , President of Estonia ,40 years ago, 40 years after Europe had been
divided between those with power, between those who never hesitated to use this power to the
benefit of their own nations and detriment of the others – 45 people from the Baltic States sent
out an appeal to the United Nations, to the EU and the countries involved.
Their appeal – later known as the Baltic Memorandum – carried the hope that multilateral co-
operation based on the rule of law can deliver for the small occupied states located between the
two global blocks, the liberal democratic world and the Soviet Union.
Just 12 years later, the three Baltic States re-joined the world of free and independent states. This
was a victory for democracy and multilateral co-operation.
This year, Estonia celebrates the 40-year anniversary of the Baltic Appeal by taking
responsibility we could not even dream about during occupation – becoming an elected member
of the Security Council of the United Nations.
We took this responsibility because we care. We care about the weaker and the weakest among
states and within societies. We care about those whose voice needs amplification by the
multilateral world in order to be heard.
We care about nations facing genocide. We care about their women, their children.
We care about nations facing long term conflicts and suffering from terror. We care about their
generations of boys for whom the only known profession is that of a soldier.
We care about nations facing extinction through the slow weapon of mass destruction – the
climate catastrophe.
We care about nations facing famine, and famine-induced disturbances due to climate change.
We care about nations depending on this multilateral co-operation, based on the rule of law,
which is the United Nations.
We care because we know that true harmony for humankind – never yet achieved – depends on
our capability to show compassion for the fate of others.
Multilateralism is nothing but showing compassion for the fate of others.
Compassion was shown to us when we regained our independence and rebuilt our state.
We are ready to return this compassion shown to us, ready to take an elected seat for the period
of 2020-2021, behind the most difficult table of international co-operation, the Security Council.
We are ready to serve our electorate and all the others, too, as true service for humankind in a
multilateral system always demands.
We will talk with countries, not just about them.
Respect for the international rule of law and the efforts taken by those who preceded us in
implementing it will guide our actions, our decisions, our debates.
We have nothing but respect for varied, but sincere positions and opinions on how to resolve the
pressing issues we are facing, to support our decision-making. Those steered by compassion for
the humankind and compassion for this planet we habit, can rely on Estonia.
The moral authority of the UN as the global carer for humanity is dear to our hearts.
We have a lot of long-standing and painful issues to tackle, like the fate of women and children
in conflict zones. But we also have new emerging challenges related to new technologies.
Estonia is to this day the world`s only digitally transformed nation which runs its government
totally online. But many are following us into cybersphere.
New risks to our sovereignty emerge, related to cyber crime and also cyberspace as the new
military domain. As Estonia is globally contributing to the leapfrogging efforts based on e-
governance, we feel our responsibility to protect cyberspace as well. Hence, we strive, also in
our work in the UN Security Council, towards better application of international law in the
digital space.
Estonia has already declared its own intent in applying national and international law where
cyberspace is concerned. We invite all nations to do the same, in order to clarify how
international law applies in digital sphere.
We support and also actively participate in the reform efforts of the United Nations, lead by
Secretary General Antonio Guterres. We want the UN to be ready to lead in the 21 st century,
fully benefiting from the technological advances of humankind, which have made it much easier
for those who are not big and powerful – the majority of the UN Members – to follow and
contribute to the UN various bodies and numerous discussions.
We support thematic consolidation of UN actions and a regional focus of the aspirations, like the
high-level working group Every Woman, Every Child; or better common management of the UN
actions in various countries.
We also support those who say they want to be much more independently responsible, yet
supported by the UN in taking the steps towards collective regional approach to long-standing
problems – like the African Union.
We participate, both through UNDP, UNICEF and other UN bodies, in resolving global miseries.
We also strive to use the development resources of ourselves, leveraged by those of the EU and
UN, to suggest state-building based on digital solutions, seeing the potential of internet and
mobile access even among the poorest.
It allows the states to provide for their people, starting from registries of population, effortless
access to online birth registrations and online learning tools for those whose access to classical
schooling is limited by geography, ongoing conflict, social stigma or disability. We see the
Internet as a wonderful tool for educating girls globally, offering jobs for women globally, thus
reducing global population growth by emancipating  women.
We support the thinking that saving our planet is also a civic responsibility of every person.
Nowadays and with the help of technology, we can take this responsibility and feel the serious
global effect of the action of each and every one. Like in the second world clean-up day just last
Saturday, when for the second year in a row, the civil movement born in Estonia spread to 179
countries and territories – including Antarctica – involved more than 20 million people and still
counting.
Encouraged by this, the Estonian start-up sector underwrote a memorandum with global
ambition, promising to be climate neutral in all their actions by 2030. They bring some serious
market power and also start-up thinking behind the table, including their ability to quickly and
globally mobilise masses of people. Sometimes we associate their capability to change our world
only with the negative: closed bubbles and an antagonistic debate style, disruption of work
patterns and risks to our social service provision through allowing a global jobs market not
compatible with our industrial era tax models.
But this capability can also be used to mobilise masses for the good, making a real difference.
The pledge to climate neutrality is open to all start-ups and other green-minded companies ready
to support grassroots movement to save our planet. Today, a week after initiating the process, the
number of signatories has already more than doubled and spread beyond Estonia, now covering
more than 70 companies across Europe.
We need these civic movements, among other things, to encourage policymakers that idealism,
readiness to act for the benefit of humankind today and the children yet to be born – still exists.
That allows us, politicians, to set aside resources for stopping climate change, which will
inevitably reach and probably exceed 1% of global GDP.
The main reason why we are not globally efficient in putting into practice the already existing
technologies for green energy production, is the fragmentation of our actions. It is an obstacle to
global grid development. It is an obstacle to harnessing solar energy for the benefit of us all,
even if we know that a surface not exceeding the territory of Spain is all we need to cater for
global energy needs. It is an obstacle to making each and every microgrid globally rely on
renewables, and developing access to electricity among those who currently have none.
And there is no one but the UN to help us overcome this fragmentation. We welcome yesterday’s
first global Climate Summit as the sign that the UN is ready for this challenge.
Climate change remains the biggest existential challenge the world is facing. In this light it is
disturbing to know that we still keep subsidising trillions of dollars into its source – the fossil
fuel industry.
The destructive force of climate change is not evenly distributed around the world. There are
places more vulnerable than the others. However, no place on Earth will be untouched and none
of us can escape it. Many people across the globe already experience threats with regard to their
livelihoods and, indeed, lives.
The Himalayan glaciers are melting at double the rate since the turn of this century, threatening
water supplies throughout Central, South and East Asia. Arctic permafrost is melting decades
earlier than even worst-case scenarios – threatening to unlock vast amounts of methane, a
powerful greenhouse gas.
Many people in Small Island Developing States (SIDS) live in a constant fear of inundation by
rising seas. The situation will only get worse unless we address it now with ambition and
urgency. Yet, our efforts and progress are far from enough to avoid obviously adverse effects of
this global crisis. A crisis that no country can solve alone.
 Security issues related to climate change are further addressed by the Group of Friends on
Climate and Security where Estonia also participates.
Science tells us that climate change is unequivocal. It also indicates the best practices to tackle it.
Looking for the best solutions, we must also always rely on science. There is a common
perception that replacing fossil fuels with biomass is carbon neutral, whereas science has told us
that this is not entirely correct. Renewable energy is not necessarily carbon-neutral. In fact,
burning wood can actually increase CO2 emissions and would make it even harder for us to
receive climate neutrality goals by mid-century. Instead, it’s more efficient to use wood for
making products and in this case it's not only carbon-neutral, it's carbon-positive as these
products store carbon for their entire lifetime. We in Estonia appreciate this and every 4th
wooden house exported in the world is made by Estonians.
Climate change and environmental degradation is one of these few things where we need to
share collective responsibility. In this battle we are all on the same side and it is the only way we
can win. We have one good example to take with us from the past where our collective effort
once paid off. It was back in 1987 when we agreed to protect the ozone layer by phasing out
numerous substances that were responsible for ozone depletion. As a result, the ozone hole in
Antarctica has since then been slowly healing.
Next year, we will be celebrating the 75th anniversary of the United Nations. I would encourage
us all to take the 12 months to the birthday party as an opportunity to think what we can do both
individually and jointly to safeguard and strengthen the UN and multilateralism.
Because the reality is simple – this global, interlinked and globally warming world cannot
survive unless our goodwill and good actions can work beyond artificial limitations created by
various, and from the viewpoint of humankind as a whole, artificial fragmentations of global
society which has hounded us and keeps hounding us.
It is the lack of true multilateralism, true and idealistic thinking for the benefit of humankind as a
whole, that keeps undermining the positive effect of our global efforts. We must overcome it.
The UN is our tool to overcome it. It has to be sharpened, it has to be supported by new
technologies, it has to be connected to civil societies through digital means allowing to join
individual efforts to global movements – but it can never be replaced.

Date Time Speaker Statement Code Rating

06.11.1 12:40 Republic of we are particularly concerned by the statement that Negative 2
9 PM – Estonia general principles of law may serve as a basis for
12:48 jus con
PM We are not only unaware of any evidence to support Negative 2
this conclusion but concerned by the implication
that there are characteristics of general principles of
law that would allow one to assume the existence of
criteria required for establishing a principle of jus
con

CHINA
74th session of sixth committee 2019

The Commission adopted, on second reading, the draft articles on ‘Prevention and punishment of
crimes against humanity’ and the commentaries thereto. The Commission also adopted, on first
reading, the draft principles on ‘Protection of the environment in relation to armed conflicts’ and
the draft conclusions on ‘Peremptory norms of general international law ‘, together with
respective commentaries thereto. In addition, the Commission initiated its consideration of the
topic ‘General principles of law’, and decided to include the topic ‘Sea-level rise in relation to
international law’ in its programme of work. The Chinese delegation applauds the active work of
the Commission.

I would like to present the views of the Chinese delegation on the relevant topics as contained in
the report. With respect to ‘Prevention and punishment of crimes against humanity’, the
Commission adopted, on second reading, the draft articles on this topic at its seventy-first
session, and recommended the elaboration of a convention by the General Assembly on the basis
of the draft articles. States are reaching consensus on the need for a convention.

The Chinese delegation has noted that due to time constraints, First of all, the criteria for the
identification of jus cogens should be strictly implemented. The two criteria adopted by the
Commission on first reading, namely a norm in question should be »a norm of general
international law and accepted and recognized by the international community of States as a
whole as a norm from which no derogation is permitted«, are largely in line with the consensus
of the international community. Secondly, the draft conclusions should avoid treading on the
relationship between resolutions of the Security Council and jus cogens. The Chinese delegation
has noted that according to draft conclusion 16, A resolution, decision or other act of an
international organization that would otherwise have binding effect does not create obligations«
if and to the extent that they conflict with Jus cogens.

Article 103 of the Charter of the United Nations, obligations under the Charter prevail over
other rules of international law. Nevertheless, this delegation finds it inappropriate to make an
explicit reference to the relationship between Security Council resolutions and jus cogens in the
commentaries. Resolutions of the Security Council, whose authority flows the provisions of the
UN Charter, must meet stringent procedural requirements and comply with the purposes and
principles of the Charter. It is simply inconceivable that such resolutions will conflict with jus
cogens.

Security Council resolutions against jus cogens will very likely lead to the use of jus cogens as a
pretext to evade the obligation to implement those resolutions or a challenge to their
authority, thereby undermining the collective security mechanism of the United Nations. The
 Chinese delegation therefore suggests that languages relating to Security Council resolutions be
removed film the commentaries to the draft conclusions. The current draft includes in its annex a
list of eight peremptory norms, namely the prohibition of aggression, the prohibition of
genocide, the prohibition of crimes against humanity, the basic rules of international
humanitarian law, the prohibition of racial discrimination and apartheid, the prohibition of
slavery, the prohibition of torture, and the right of self-determination. This delegation finds such
a list to be highly problematic, as the Commission failed to provide convincing arguments for the
inclusion of those norms in accordance with its own criteria for the identification of jus cogens as
contained in the draft conclusions.

Such an approach will provoke even greater divergences of views and is at variance with the
original intention of this topic, which is to elaborate on the criteria for the identification of jus
cogens.

Date Time Speaker Statement Code Rating

28.10.1 11:25 Mr. JIA The Commission adopted, on second reading, the positive 4
9 AM – Guide draft articles on ‘Prevention and punishment of
11:38 crimes against humanity’ and the commentaries
AM thereto.