‘We Must Look to International Law as a Beacon of Light’, Commission Co-Chair Tells Sixth Committee, as Review of Annual Report Begins
Representatives Tackle First Cluster on General Principles of Law, Sea-level Rise in Relation to International Law, Other Decisions
As the Sixth Committee (Legal) began its consideration of the International Law Commission report today, speakers took up the first of three clusters of topics, including the chapters on “General principles of law”, “Sea-level rise in relation to international law” and “Other decisions and conclusions of the Commission”, while also discussing the Commission’s approach and working methods.
Before the Sixth Committee was the report of the International Law Commission of its seventy-fourth session (document A/78/10).
Suriya Chindawongse (Thailand), Chair of the Sixth Committee, stressed that, as both the General Assembly and the Commission play a pivotal role in codification and progressive development of international law, “this is the most important forum and time for both bodies to interact to fulfil our common responsibility”. He also underscored that comments from Governments and States on their practice are an inevitable part of the Commission’s analysis and shape the outcomes of its work.
Patrícia Galvão Teles (Portugal), co-Chair of the International Law Commission, noted that she — along with co-Chair Nilüfer Oral (Türkiye) — were the first women to address the Sixth Committee as Commission Chairs. “It is our hope that the symbolism this carries will bring us closer to a shared goal of making international law the bastion not only for peace, but also one whose structures and methods are informed by the diversity of the people it represents,” she said. Giving a detailed review of Cluster 1, including the adoption on first reading 11 draft conclusions on general principles of law, she also reported that it advanced on sea-level rise in relation to international law, among other items.
Nilüfer Oral, reporting on Cluster 2, noted, among other points, that the Commission provisionally adopted draft guidelines on the “Settlement of disputes to which international organizations are parties” and provisionally adopted draft articles on “Prevention and repression of piracy and armed robbery at sea”. More so, she stressed: “While we find ourselves in a bleak moment in history — without question — we must look to international law as a beacon of light and, together, ensure we preserve the integrity and viability of international law within the multilateral system.”
In the ensuing debate, speakers delved into both the structure and the terminology of the draft texts in the Cluster 1 topics, as well as the Commission’s working methods.
Denmark’s delegate, speaking also for Finland, Iceland, Norway and Sweden, noted that, while there is no formal hierarchy between the primary sources of international law, the general principles of international law in practice play a subsidiary role. She added that the term “international community of States” seems clearer and more up-to-date than the term “community of nations”.
Building on that, the representative of Brazil said that because those principles derive from national legal systems, the Commission should adopt the term “general principles of law recognized by the community of States”. He also urged that it refrain from including principles of law formed within the international legal system when adopting the draft conclusions on second reading.
For his part, the European Union’s representative, speaking in its capacity as observer, welcomed the replacement of the term “civilized nations”. However, he pointed out that the new term “community of nations” does not seem to fully reflect the role which is played by international organizations as subjects of international law.
The delegate of Fiji, speaking for the Pacific Islands Forum and addressing “Sea-level rise in relation to international law”, recalled its 2021 Declaration on Preserving Maritime Zones in the Face of Climate Change-Related Sea-Level Rise. The Forum’s Regional Conference in March “helped advance our thinking on international law issues in the context of sea-level rise, including its broader implications on Statehood, sovereignty and human rights,” he reported.
Singapore’s representative called for further study on how the principle of equity should apply vis-à-vis the implications of climate-change-induced sea-level rise should be conducted. She also underscored that maritime boundary delimitation treaties and the decisions of international courts or tribunals should not be easily re-opened in the interest of promoting the stability of, and respect for, existing boundaries.
Turning to the Commission’s composition and approach to its work, Sierra Leone’s delegate, speaking for the African Group, welcomed the Commission’s first African female member, as well as the election of its first female co-Chairs. He also underscored the importance of taking into account the diversity of legal tradition as well as geographic and linguistic considerations in developing and codifying international law.
Underlining the need to continue improving the Commission’s working methods, France’s representative urged a more fluid dialogue with Sixth Committee States. In addition, the Commission should also devote several readings to the subjects which merit it and reflect the comments and observations of States. Otherwise, the conclusions run the risk of not having consensus in the Committee, he noted.
The Sixth Committee will next meet at 10 a.m. on Tuesday, 24 October, to continue its discussion of Cluster 1 from the International Law Commission’s report on the work of its seventy-fourth session.
Introduction to International Law Commission Report
SURIYA CHINDAWONGSE (Thailand), Chair of the Sixth Committee (Legal), welcomed Patrícia Galvão Teles, Chair for the second part of the International Law Commission’s session, Nilufer Oral, who served as a Chair of the Commission during the first part of its session and Marcelo Vázquez-Bermúdez, Special Rapporteur on the topic “General principles of law”, as well as the co-Chairs of the Study Group on sea-level rise in relation to international law. He underscored that the United Nations and the international legal community attach great importance to the work of the Commission in the progressive development of international law and its codification.
“Elaboration of norms addressing some of the big challenges facing the international community is one of the most important tools we have at our disposal,” he noted. As both the General Assembly and the Commission play a pivotal role in codification and progressive development of international law, he emphasized that “this is the most important forum and time for both bodies to interact to fulfil our common responsibility”. Comments from Governments and States on their practice presented during the discussion represent an inevitable part of the Commission’s analysis and shape the outcomes of its work, he stressed, outlining the Committee’s programme of work on the consideration of the Commission’s report and its three clusters.
PATRÍCIA GALVÃO TELES (Portugal), co-Chair of the International Law Commission, first noted that she — along with co-Chair Nilüfer Oral (Türkiye) — are the first women to address the Sixth Committee as Commission Chairs. “It is our hope that the symbolism this carries will bring us closer to a shared goal of making international law the bastion not only for peace, but also one whose structures and methods are informed by the diversity of the people it represents,” she said.
Turning to the Commission’s report on its seventy-fourth session (document A/78/10) and, specifically, Cluster 1, she noted that the Commission adopted on first reading 11 draft conclusions on “General principles of law”. It also advanced work on the topic of “Sea-level rise in relation to international law” and commenced consideration of three new topics included in its work programme in 2022: settlement of disputes to which international organizations are parties; prevention and repression of piracy and armed robbery at sea; and subsidiary means for the determination of rules of international law.
Adding that the Commission decided to include the topic of non-legally binding international agreements in its programme of work, she then reported that it attaches great importance to improving its working methods. Further, she appealed for contributions to a trust fund to assist the Commission’s functioning and further advance the work of its Special Rapporteurs and Study Group Chairs. Noting other methodological and procedural developments, she then turned to the substantive chapters of the report.
On Chapter IV — “General principles of law” — she recalled that the Commission adopted 11 draft conclusions — together with commentaries thereto — on first reading. It then transmitted the same to Governments for comments and observations, which should be submitted to the Secretary-General by 1 December 2024. Detailing the content of the draft conclusions, she said they address general principles of law both derived from national legal systems and formed within the international system, along with the role of decisions and teachings in the determination of such principles.
Turning to Chapter VIII, which covers “Sea-level rise in relation to international law”, she reported that the Commission reconstituted the Study Group on this topic. Discussions therein saw an extensive exchange of views on various topics, including the meaning of “legal stability”, with attention on baselines and maritime zones. The Study Group also held a discussion on future work on the topic. In that context, the Study Group will revert in 2024 to the subtopics of Statehood and the protection of persons affected by sea-level rise — last discussed in 2022 — and, in 2025, will aim to finalize a substantive report on the topic as a whole. To that end, she encouraged Governments to provide information on these issues, also welcoming any information that States, international organizations or other relevant entities could provide on their practice.
NILÜFER ORAL, (Türkiye), co-Chair, then reported on Cluster 2 — “Settlement of disputes to which international organizations are parties and “Prevention and repression of piracy and armed robbery at sea”. In regards to Chapter V “settlement of disputes to which international organizations are parties”, she noted that the Commission provisionally adopted two draft guidelines on this topic. The definition of “international organization” builds on that contained in the draft articles on the responsibility of such organizations that the Commission adopted in 2011. On Chapter VI, concerning “prevention and repression of piracy and armed robbery at sea”, she said that the Commission provisionally adopted three draft articles, with commentaries. They define “piracy” based on relevant provisions of the 1982 United Nations Convention on the Law of the Sea, she noted, recalling the Commission’s objective of not altering any rules set forth in existing treaties. The draft articles also define “armed robbery at sea” and, on that, she pointed out that the main difference between these two crimes lies in the location of the act, which has jurisdictional consequences.
Turning to Cluster 3, specifically Chapter VII — “Subsidiary means for the determination of rules of international law” — she reported that the Commission provisionally adopted three draft conclusions on the topic, with commentaries, and also took note of two others. One such draft conclusion considers their scope, on which the Commission considered that subsidiary means interact with sources of international law but are not themselves sources. Rather, they assist in the determination of rules of law. Another draft conclusion — addressing criteria for the assessment of such subsidiary means — is based on the premise that various forms of subsidiary means will have different weight or value depending on the context. On Chapter IX, concerning “Succession of States in respect of State responsibility”, she said the relevant Working Group decided to recommend that the Commission continue consideration of this item in the format of an open-ended working group to discuss the way forward on this topic.
“While we find ourselves in a bleak moment in history — without question — we must look to international law as a beacon of light and, together, ensure we preserve the integrity and viability of international law within the multilateral system,” she went on to say. It is with this sense of responsibility that the Commission undertakes its work, and it looks to the Sixth Committee for valuable comments thereon. The Commission’s interaction with the Committee during the debate on the annual report provides a useful framework for enriching its work products, she emphasized. Looking forward to a useful exchange of views over the coming days, she added that the Commission also “looks to the Sixth Committee to effect the necessary changes that we all desire to assure, in particular, gender representation in our Commission”.
Statements
MICHAEL IMRAN KANU (Sierra Leone), speaking for the African Group, said that as Africa welcomes its first female member of the Commission, the Group is also pleased to see the election of its first female co-Chairs. Underscoring the importance of taking into account the diversity of legal tradition, as well as geographic and linguistic considerations in developing and codifying international law, he said the Commission should develop cooperative relationships with regional international law commissions, including the African Union Commission on International Law. In this regard, he welcomed the exchange between the two entities this session — the first since 2019. Furthermore, the Commission must redouble efforts to draft its inspiration from the main principal legal systems reflective of the contemporary world, including African sources and principles in its work, he asserted.
Stressing the importance of inscribed topics, he pointed out that according to the 2023 report, the Commission was engaged in a productive session in the new quinquennium. He recalled the African Group’s statement on the issue of equitable geographical representation in the Commission’s work and noted that only one African member was serving as a Special Rapporteur and another as a co-Chair of a Working Group. He, thus, called on the Commission — when deciding on new topics — to consider a balanced approach to those in terms of Member States’ practical interest and in selecting a Special Rapporteur. Highlighting the need for resources to ensure that the appointed Special Rapporteurs can lead the Commission’s work, he suggested the Commission’s plenary meetings be webcasted to increase accessibility of its work.
STEPHAN MARQUARDT, representative of the European Union, in its capacity as observer, noted his agreement with the Special Rapporteur that European Union practice — which builds on and reflects the legal traditions of 27 European States — may be an important reference point when identifying principles recognized by the community of nations. That practice could serve as a reference to determine how the methods of comparative law should be used in this context, in particular when an international judicial body is faced with the task of identifying general principles of international law. In the same vein, he pointed to article 6(3) of the Treaty on European Union, which states that “fundamental rights (…) as they result from the constitutional traditions common to the member States, shall constitute general principles of the Union’s law”.
Turning to “General principles of law”, he said, in regard to the draft conclusions and their commentaries, that draft conclusion 2 refers to the recognition of the general principle of law by the “community of nations”. Detailing several matters regarding those texts, he said that the term “community of nations” replaces the term “civilized nations” found in article 38 paragraph 1 c) of the Statute of the International Court of Justice. While agreeing that the term “civilized nations” used by that Statute may appear anachronistic, he considered that the new term “community of nations” does not seem to fully reflect the role which is played by international organizations as subjects of the international law. He also said the term “transposition” in draft conclusion 4 was preferred to “transposability”. However, the precision that the term “transposition” should not be read as meaning that an ex-ante transposition would be required. Draft conclusions 4 and 5 require that the principles derived from national legal systems must be “common to the various legal systems of the word”, he noted, requesting further clarification in this regard in the commentary.
THOMAS RAMOPOULOS, representative of the European Union, in its capacity as observer, then took up “Sea-level rise in relation to international law”, stressing that the Convention on the Law of the Sea reflects customary international law, including the general obligation to protect and preserve the marine environment, including against pollution and sets out the legal framework from which all activities in the oceans and seas must be carried out. Consequently, any solutions that might be proposed in the Commission’s report on the topic of sea-level rise need to be in line with and respect the legal framework established by the Convention. On key issues of the legal stability with a focus on baselines and maritime zones, and of the immutability and intangibility of boundaries, as discussed in points 140 to 170, he acknowledged that sea-level rise threatens many low-lying States and islands, especially small island States, and their coastlines. While the principle that “land dominates the sea” is an underlying premise for the attribution of maritime zones, he said that this does not necessarily imply that coastal States would be legally obliged to periodically review and update their charts and coordinates they have drawn (or agreed) and duly published in accordance with the relevant provisions of the Convention.
AGNES HARM (Fiji), speaking for the Pacific Islands Forum, said that as large oceanic States, the Forum has always asserted its guardianship and stewardship of the ocean, with past, present and future development based on the rights and entitlements guaranteed under the 1982 United Nations Convention on the Law of the Sea. In August 2021, the Forum’s leaders adopted the Declaration on Preserving Maritime Zones in the Face of Climate Change-Related Sea-Level Rise to ensure their legal rights and entitlements as sovereign nations are not lost nor challenged due to sea-level rise. The Declaration is the Group’s formal, collective view on how the Convention’s rules on maritime zones apply amidst climate change-related sea-level rise, rooted in underpinning legal principles. As well, the Forum convened a regional conference, Statehood and the Protection of Persons Affected by Sea-Level Rise in March of this year.
The Forum’s 2050 Strategy set out values and commitments that inform the region’s understanding of the issue of Statehood, she continued. These include regionalism and solidarity; treasuring the diversity and heritage of the Pacific and seeking an inclusive future; and acting as the Blue Pacific Continent to protect collective interests and secure the well-being of their people. The protection of persons is broad and cuts across many human rights and security issues. However, the international frameworks on the protection of persons affected by sea-level rise are a fragmented network of hard and soft law instruments. Both rights-based and needs-based approaches to the protection of persons are important. Spotlighting the General Assembly’s adoption by consensus of the resolution “Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change” (document A/77/L.58) and the adoption of the Biodiversity Beyond National Jurisdiction Agreement, she said that these cumulative achievements demonstrate a growing regional practice that indicates the intention to preserve Statehood and sovereignty amidst climate change-related sea-level rise.
MARIE-LOUISE KOCH WEGTER (Denmark), speaking also for Finland, Iceland, Norway and Sweden, expressed appreciation of the work of the International Law Commission and its contribution to the progressive development and codification of international law in accordance with its mandate. Taking note of the Commission’s decision to reflect on the way forward regarding the topic “Succession of States in respect of State responsibility,” she added that the first reports on the three new topics were read with interest. Also commending the inclusion of “non-legally binding international agreements” in the Commission’s programme of work, she said that all the requests for information contained in Chapter III have been duly noted. Examples of State practice are particularly pertinent and the countries for which she speaks will make every effort to provide the Commission with relevant information, she stressed, encouraging other States to follow suit.
Turning to “General principles of international law”, she noted that while there is no formal hierarchy between the primary sources of international law, its general principles in practice play a subsidiary role. As for the terminology in draft conclusion 2 and draft conclusion 7, paragraph 1, she reiterated that the term “international community of States” seems clearer and more up-to-date than the term “community of nations”. She expressed agreement that general principles may either be derived from national legal systems or formed within the international legal system. As stipulated in draft conclusions 8 and 9, judicial decisions and teachings may serve as subsidiary means for the determination of general principles of international law. However, such inclusion as separate draft conclusions is unnecessary and inappropriate, she stressed, also expressing support for draft conclusions accompanied by commentaries as a proposed outcome of the process.
On “Sea-level rise in international law”, she said that although new realities can call for updated terminology and new concepts, caution should be exercised when using concepts still undefined in international law, such as “specially affected State”. The issue of “legal stability” in relation to sea-level rise, with a focus on baselines and maritime zones stands out as a significant subtopic in the work of the Commission. Fixing of baselines or outer limits can indeed provide legal stability; still, this too requires caution, with full respect for the Convention and considering all possible implications. While it is not advisable to amend the Convention, she did not exclude that joint interpretive declarations or other common international legal instruments could be a way of addressing the issue of sea-level rise. She expressed support for further exploring the issue of submerged territories and the principle of self-determination in the context of sea-level rise.
DAPHNE HONG (Singapore), speaking on “General Principles of Law”, highlighted the Commission members’ debate on the second category of general principles of law under draft conclusion 3, paragraph b. In this regard, she found it helpful that the respective commentary makes reference to both sides of the debate. However, she noted two difficulties with draft conclusion 7 and its commentary in their current format, pointing out that it is not clear that the term “intrinsic” means for a principle to “reflect” and “regulate” the “basic features” of the international legal system. As well, she reiterated concern that the caveat under paragraph 2 that the criterion in paragraph 1 is broad and threatens to undermine the criterion completely. It was also unclear whether the methodology set out in draft conclusions 4 to 7 was applied to identify the principles cited in the commentary to draft conclusion 10 as examples of general principles of law that serve as the basis for primary rights and obligations, secondary rules or procedural rules.
Turning to “Sea-level rise in relation to international law”, she said that she agreed with the co-Chairs' preliminary observation that there is no obligation under the Convention on the Law of the Sea to keep baselines and outer limits of maritime zones under review nor to update charts or lists of geographical coordinates once deposited with the Secretary-General. Maritime boundary delimitation treaties and the decisions of international courts or tribunals should not be easily re-opened in the interest of promoting the stability of, and respect for, existing boundaries. In addition, she encouraged further study on how the principle of equity should apply vis-à-vis the implications of climate-change-induced sea-level rise. Noting that State practice in relation to historic waters, title and rights is limited, she said she was looking forward to the final report on “Sea-level rise in relation to international law” in 2025.
On “Other Decisions and Conclusions”, she congratulated the Commission on its upcoming seventy-fifth anniversary in 2024 and welcomed the conclusion of another session of the International Law Seminar. She also commended the convening of the workshop on the impact of climate change on the law of the sea and international water law. Expressing regret that the Commission will not be able to meet in New York for the first part of its seventy-fifth and seventy-sixth sessions in 2024 and 2025, she emphasized the importance of enhancing dialogue with the General Assembly and the Sixth Committee. In this context, she urged the Secretariat to make the necessary arrangements for the Commission to hold its seventy-seventh session in New York in 2026.
ADAM MCCARTHY (Australia), aligning himself with the Pacific Islands Forum, encouraged the Commission to ensure gender and geographic balance and representation of the principal legal systems of the world. In regards to “General principles of law”, he noted that the 11 draft conclusions are a valuable first step to help States clarify the interpretation of the topic within the meaning of article 38, paragraph 1 of the Statute of the International Court of Justice. However, he expressed continuing hesitation regarding the inclusion of a “without prejudice” clause in draft conclusion 7 — particularly as the conclusion does not specify criteria by which a general principle of law in this category can be identified.
Turning to “Sea-level rise in relation to international law”, he affirmed that climate change-related sea-level rise poses an existential threat to low-lying States, from the Pacific and beyond. He noted that the Pacific Islands Forum Regional Conference in March “helped advance our thinking on international law issues in the context of sea-level rise, including its broader implications on statehood, sovereignty and human rights”. He further spotlighted the 2021 Declaration on Preserving Maritime Zones in the Face of Climate Change-Related Sea-Level Rise, welcoming support for the Declaration beyond the Pacific, thus contributing to the development of international law and State practice on interpretation of the Law of the Sea.
Turning to “Other decisions and conclusions”, he urged Member States to consider how to strengthen the symbiotic relationship between the Commission and the Sixth Committee “in our common endeavour towards the codification and progressive development of international law”.
PEDRO MUNIZ PINTO SLOBODA (Brazil), on “General principles of law”, said that because such principles derive from national legal systems, the Commission should adopt the term “general principles of law recognized by the community of States”. Further, on texts noting such principles derived from national legal systems, he underlined that these principles must be common to different legal systems around the world and reflect language diversity. Multilingualism is very important and materials from Portuguese-speaking countries are often absent from United Nations documents, with only sparse references that do not properly reflect the importance of that legal tradition. The Commission should add an explicit reference to the different languages of the world in draft conclusion 5, paragraph 2. Draft conclusions are mainly aimed at systematizing existing rules of customary international law. Yet draft conclusions 3(b) and 7 reflect an exercise of progressive development in a topic related to the sources of international law. In addition, the Commission should refrain from including principles of law, formed within the international legal system, when adopting the draft conclusions on second reading. As a better course of action, the Commission could consider the inclusion of a “without prejudice” draft conclusion, in case the State practice is to support principles formed in the international legal system as general principles of law, he said.
Turning “Sea-level rise in relation to international law”, he reiterated that solutions to the complex problems arising from the topic should be in accordance with the Convention. Regarding baselines and maritime zones, he affirmed the importance of legal stability, yet noted that current State practice is not sufficient to identify a clear rule on ambulatory or fixed baselines. At the same time, the Convention does not explicitly set out any obligation to update published baselines. In this respect, it is crucial that any future rule on the topic be established on the basis of State consent, he said.
Turning to “Other decisions”, he welcomed the inclusion of the topic “non-legally binding international agreements” in the Commission’s programme of work. Considering the topic’s non-binding nature and to avoid ambiguity emanating from the use of the term “agreements”, he recommended that the Commission change the topic’s title to “non-legally binding instruments”. He also encouraged the Special Rapporteur to use the guidelines on the same topic adopted in 2020 by the Inter-American Juridical Committee. This Committee is the advisory body of the Organization of American States on the codification and progressive development of international law. Among the topics already inscribed in the long-term programme of work, he said his delegation would favour the inclusion of “extraterritorial jurisdiction” in the Commission’s active agenda and he welcomed the Commission’s recommendation to hold its seventy-seventh session in New York.
Finally, on “Peremptory norms of general international law (jus cogens)”, he noted the Commission’s report on its seventy-third session, when it adopted the draft conclusions on identification and legal consequences. He voiced his support for the Commission’s recommendation that the General Assembly should note the draft conclusions, annex them to a resolution, ensure their widest dissemination, and commend them, together with the commentaries, to the attention of States.
Mr. COLAS (France), spotlighting the Commission’s efforts towards diversity, said its efforts regarding linguistic diversity must also be reflected in the diversity of documentary sources. In this context, France provided a voluntary contribution of €100,000 to support an international law seminar, in which 23 people of different nationalities and from all regional groups participated. He also underlined the need to continue improving the Commission’s working methods, in particular regarding a more fluid dialogue with Sixth Committee States. The Commission should also devote several readings to the subjects which merit it and reflect the comments and observations of States. Otherwise, the conclusions run the risk of not having consensus in the Committee, he said.
Turning to “General principles of international law”, he expressed regret that that the Commission ignored the distinction which exists, in the French law, between the general principles "of the” law — which refer in fact to customary law — and the general principles “of” law mentioned in article 38 of the International Court of Justice’s Statute as an autonomous source. With conclusion 7, general principles of law have their origins in national legal systems before being transferred to the international level. This seems to exclude the possibility of recognizing the existence of general principles of law formed directly within the context of the international legal system. Such principles appear rather to derive from customary law. In addition, conclusion 11 could be fine-tuned or even divided into two distinct conclusions because of differing legal implications, he noted.
On “Sea-level rise under international law”, he welcomed that the Commission has reasserted the relevance of the Convention on the Law of the Sea to find solutions to the effects of sea-level rise. Also commending the broad agreement on fixed baselines, he expressed approval of the Study Group’s prudence regarding fundamental change of circumstances. The certainty of the treaties would support the argument against the use of rebus sic stantibus principle to upset maritime boundary treaties, he stressed. He also drew attention to the importance of the consultative process in the International Court of Justice regarding the obligations of States in terms of climate change as well as the International Tribunal for the Law of the Sea submitted by the Commission of Small Island States on climate change and international law. Their conclusions can feed into the considerations of the International Law Commission on the matter, he said.
Regarding “Other decisions and conclusions of the Commission”, he took note of the inclusion in the Commission’s programme of work of "Non-legally binding international agreements”. This is an important subject for the legal advisers of States who, in their daily practice of international law, encounter instruments with uncertain legal scope. In light of that, he expressed his country’s readiness to cooperate with the Commission to provide it with any necessary information from the national practices on the topic. Given the time already devoted to “Immunity of State officials from foreign criminal jurisdiction”, it is important not to be too quick in concluding its consideration. Welcoming the establishment, by the Secretary-General, of a trust fund for assistance to the Commission’s Special Rapporteurs or Chairs of Study Groups, he emphasized that it should be used with due consideration of the diversity of profiles, particularly in linguistic terms.
SINA ALAVI (Liechtenstein), on “Immunity of State officials from foreign criminal jurisdiction”, welcomed draft article 7, which addresses international crimes to which functional immunity shall not apply. This is a key provision in the context of the fight against impunity for the core international crimes — the crime of aggression, genocide, war crimes and crimes against humanity. Noting that these four “make up what we call core crimes”, he said that the crime of aggression should be included in draft article 7 — especially because it is a “leadership crime”, which requires overcoming immunity to ensure meaningful accountability and prevent future commission.
Turning to “Sea-level rise in relation to international law”, he emphasized that the right to self-determination of those States most immediately affected “must be at the heart of our consideration”. He also welcomed efforts to institutionalize the fixing of maritime zones, such that they cannot be challenged or reduced because of rising sea levels. Further, he expressed support for the report’s interpretation that the Study Group should consider sui generis status for territories submerged owing to sea-level rise, particularly because sea-level rise is an anthropogenic phenomenon. Looking forward to the Commission’s 2024 work on Statehood and the protection of persons affected by sea-level rise, he said his country will continue working with like-minded States to consider legal avenues to fight climate change.
SALLY LANGRISH (United Kingdom), speaking on “Other decisions and conclusions of the Commission” welcomed its decision to include the topic “Non-legally binding international agreements” in its program of work, stressing that terminology is key when distinguishing non-binding instruments from treaties. Noting that her country’s practice is to use the term non-legally binding “instrument” or “arrangement” and reserve the term “agreement” for treaties, she suggested to amend the title of the topic to “non-legally binding international instruments and arrangements”.
Turning to “General principles of law”, she welcomed the completion of the first reading of draft conclusions and commentaries, emphasizing that the adoption of these documents at first reading gives States the opportunity to look at the project as a whole. In this regard, her delegation will submit detailed written comments by December 2024, she said.
Regarding “Sea-level rise in relation to international law”, she said she is open to legitimate interpretations and applications of the Convention on the Law of the Sea and in principle adaptive interpretation, while urging Member States to be mindful of the potential risks and unplanned consequences of any change in interpretation. Stressing that any emergent consensus on the preservation of existing maritime boundaries should not apply to the claims inconsistent with the Convention for reasons unconnected with sea-level rise, she reiterated a call for caution when examining the applicability of a principle of historic waters, title and rights in the context of sea-level rise. The Study Group should exercise caution when interpreting the silence of some States that may not necessarily reflect a position on the interpretation of the Convention. The absence of contest to the Study Group’s preliminary observations in the first issues paper, or to other points raised by the Study Group in various strands of its work, should not be interpreted as agreement with them, she added.
STEFANO ZANINI (Italy), addressing “General principles of law”, noted his agreement with draft conclusion 6, which states: “A principle common to the various legal systems of the world may be transposed to the international legal system insofar as it is compatible with that system.” He also noted that the assessment of transposition is mostly conducted by judges on a case-by-case basis. Nevertheless, the Commission’s studies should identify some general essential features of the transposition of a principle common to the various legal systems of the world, to the international legal system. Citing the difference between customary law and general principles of law, he called for that distinction to be studied further in order to find a shared and more defined methodology for detecting general principles.
Turning to “Sea-Level Rise in relation to international law”, he emphasized the importance of ensuring stability, security and legal certainty on maritime delimitation, as this is closely connected to preservation of maritime zones as they were before the effects of sea-level rise. The Convention on the Law of the Sea does not seem to preclude baselines from being considered as fixed, he said, further calling for seeking solutions that do not involve modifications to applicable international law. However, he noted the Study Group’s suggestion that a meeting of the States Parties to the Convention could be convened to define a shared interpretation of its relevant provisions. He also shared the view that sea-level rise does not constitute a fundamental change of circumstances under article 62 of the Vienna Convention on the Law of the Treaties.