Continuing Debate on International Law Commission’s First Cluster, Speakers Address Criteria for Identifying General Principles of Law
Delegates Highlight Law of Sea Convention as Framework for Tackling Sea-Level Rise in Relation to International Law
As the Sixth Committee (Legal) continue reviewing the first cluster of the International Law Commission’s annual report, many speakers addressed the juridical nature of general principles of law and its distinction within the international legal system and rules of customary law. (For background, see Press Release GA/L/3698.)
Switzerland’s representative, welcoming the Commission’s draft conclusions that treat the topic in a definitive, logical and exhaustive fashion, noted the two-step analysis regarding the criteria for identifying the principles derived from national legal systems. Not all such principles are suitable for transposition to the international legal system, she pointed out.
Offering a different viewpoint, Estonia’s delegate underscored that the essence of general principles of law should not change despite the modernization of terminology. Further, the principles must be recognized as “intrinsic to the international legal system”, thus ensuring that they meet the criteria set for general principles of law as a source of international law and have passed the scrutiny by the community of nations.
Speakers also deliberated on “Sea-level rise in relation to international law”, with many pointing to the 1982 United Nations Convention on the Law of the Sea as a foundation and framework for addressing the impact of the climate crisis on maritime borders and baselines.
In that regard, the representative of Belarus underlined the importance of adopting a uniform approach to interpreting the Law of the Sea Convention when determining baselines and outer limits of the territorial sea, the contiguous zone and the exclusive economic zone. He underlined the treaty’s central role in the settlement of any issues related to the delimitation of maritime zones in the case of sea-level rise.
On that, Germany’s delegate stressed that the principle of legal stability should equally apply to baselines and maritime zones derived from islands and rocks when these natural land features are subsequently submerged due to sea-level rise. She further observed that there is no obligation for coastal States to regularly review and update baselines, pointing out that no single State has contested this approach.
Similarly, Chile’s representative said “legal stability” is intrinsically linked to preserving maritime areas as they were established before the effects of sea-level rise. Noting that States have decided not to update their map coordinates setting out their baselines — including when the physical coast is moving inland due to sea-level rise — emphasized that no nation has questioned the proposed interpretation that would allow to establish fixed baselines.
Regarding the topic “Other decisions and conclusions”, several delegates touched upon the draft articles on the immunity of State officials from foreign criminal jurisdiction, expressing divergent opinions regarding draft article 7.
Austria’s representative, while voicing support for draft article 7 as a central provision and a contribution to the fight against impunity, pointed out that the list of exceptions to functional immunity is incomplete and should contain a reference to the crime of aggression. Noting that, according to Austrian practice, no functional immunity exists for international crimes — including the crime of aggression — he called for draft article 7 to be amended accordingly.
Countering this view, the representative of the United States recalled longstanding concerns with the draft articles under this topic, stressing that article 7 is not supported by consistent State practice and opinio juris and therefore does not reflect customary international law. Yet, despite the concerns his delegation and others have articulated, the Commission adopted the draft articles at the first reading last year, he added.
Speakers also welcomed the Commission’s decision to commemorate its seventy-fifth anniversary in Geneva in 2024, while some expressed support for holding the first part of the Commission’s seventy-seventh session in New York in 2026. Others highlighted the Commission’s programme of work, including Poland’s delegate who observed that "half of the Commission’s agenda concerns utterly new issues — a unique situation".
To that, the representative of Portugal, observing that the Commission’s products may have different formats and outcomes, highlighted the Sixth Committee’s decision to prioritize consensus — even when only a few States oppose moving forward — when the Commission has “expressly” recommended the adoption of draft articles as a convention. Stressing that States should always strive for consensus, he added: “It is not a procedural rule or a dogma, and it cannot be used as a veto.”
The Sixth Committee will meet again at 10 a.m. on Wednesday, 25 October, to continue its discussion of Cluster 1 from the International Law Commission’s report on the work of its seventy-fourth session.
Cluster 1 Statements
ANDREI POPKOV (Belarus), speaking on “General principles of law”, said that the International Law Commission’s conclusions introduce greater clarity into determining the juridical nature of these principles as its secondary and autonomous sources. The Commission should continue studying the conceptual basis for the two types of general principles — those derived from national legal systems and those formed in international ones. He also welcomed its ambition to foster dissemination of a more universal mutual understanding of the principles. Regarding draft conclusion 4, he pointed out that for a general principle — characteristic of various national legal systems — to be applicable, it must be tailored to the specificities of the international legal system. However, distortions might occur during the incorporation process, including the way in which the principle is understood in national legal systems; such understanding might become dominant under international law. To avert such a scenario, it could be set forth — in conclusions 2, 5 and 6 — the number of subjects directly involved in the transposition of a general principle of law from the national legal system into international law, as well as clear criteria to deem that principle both legally logical and compatible with the legal system.
Regarding “Sea-level rise in relation to international law”, he underlined the importance of adopting a uniform approach to interpreting the 1982 United Nations Convention on the Law of the Sea when determining baselines and outer limits of the territorial sea, the contiguous zone and the exclusive economic zone — whether they are ambulatory or frozen. Reasserting the Convention’s central role in the settlement of any issues related to the delimitation of maritime zones in the case of sea-level rise, he said that other general international law norms must be applicable for the principles. The Convention dominates the sea and the freedom of seas, among others, he added. To that end, the Study Group’s report would be a part of practical recommendations on the preservation of Statehood and the protection of persons affected by the phenomenon.
Turning to “Other decisions and conclusions of the Commission”, he welcomed its decision to incorporate “Non-legally binding international agreements” in its programme of work, adding that this topic will enable Member States to better determine the parameters for the cooperation between Governments and other subjects of international relations. “Work on this track would fit nicely with the ILC’s [International Law Commission] study of the fundamental structure of normative system of international law,” he said, noting that the reconstitution of the Working Group on the Working Methods of the Commission will help to strengthen its cooperation with the Sixth Committee and other regional codification bodies. He also expressed support for commemorating the Commission’s seventy-fifth anniversary in Geneva in 2024.
KONRAD BÜHLER (Austria), speaking on “General principles of law”, welcomed the Commission’s inclusion of this topic, as this category of sources of international law “is subject to highly divergent interpretations and, therefore, urgently requires clarification”. However, it seems difficult in practice to distinguish between general principles formed within the international legal system and rules of customary international law. On that, he said that the definition and examples relating to the identification of such general principles in draft conclusion 7 and its commentary “are not very convincing”. For example, the nature of the uti possidetis principle is controversial. While the Commission suggests that it is a principle formed within the international legal system, it also has roots in national legal systems and is considered by many to be customary international law. In addition to comments on other draft conclusions, he encouraged the Commission to consider further whether a hierarchy exists between general principles of law and other sources of international law.
Turning to “Sea-level rise in relation to international law”, he underscored that progress on this topic is “very much needed” due to the increasing effects of the man-made climate crisis. That phenomenon’s effects on borders are not just an issue for coastal and island States, he pointed out, detailing the “massive melting” of Austria’s glaciers and subsequent potential impact on treaties that establish watersheds — when they were covered by ice — as boundaries. He also said that the Commission’s report shows an inconsistency relating to the uti possidetis principle. While the Commission includes the principle as one formed within the international legal system, it also regards it as a rule of customary international law under the topic of sea-level rise. Nevertheless, he stated that the principle only applies in cases of State succession and, therefore, “would not contribute to a solution of the issue of sea-level rise”.
On “Specific issues on which comments would be of particular interest to the Commission”, he reported that his delegation has already submitted written observations on the topic of piracy and armed robbery at sea. It also intends to submit written comments on the draft articles on the immunity of State officials from foreign criminal jurisdiction. While supporting draft article 7 as a central provision and a contribution to the fight against impunity, he reiterated that the list of exceptions to functional immunity is incomplete and should contain a reference to the crime of aggression. According to Austrian practice, no functional immunity exists for international crimes — including the crime of aggression — and he called for draft article 7 to be amended accordingly. He also expressed support “for the balanced approach of the draft articles containing important procedural safeguards”, which should make the whole project acceptable to the international community.
Finally, on “Other decisions and conclusions of the Commission”, he welcomed the Commission’s decision to address the issue of “Non-legally binding international agreements”. He proposed, however, that the title of this topic should change the word “agreements” to “instruments”, as the former term should be reserved exclusively for legally binding documents. On the Commission’s future work, he called on the body to “speedily embark on the topic of universal jurisdiction”, as the Commission could make a substantive legal contribution to the ongoing discussion on this topic.
SŁAWOMIR MAJSZYK (Poland), observing that half of the Commission’s agenda concerns utterly new issues — a unique situation — turned to “Immunity of State officials from foreign criminal jurisdiction”, stressing that draft article 7 adopted on first reading in 2022 should include the crime of aggression in the list of the crimes to which immunity ratione materiae shall not apply.
Regarding “General principles of law”, he expressed regret that States' comments presented the previous year were not discussed in the Special Rapporteur's report. Conclusion 7 contains a fundamental structural problem, since its paragraph 2 envisages the existence of other general principles of law formed within the international legal system to which criteria described in paragraph 1 are not applicable. Against this background, paragraph 2 of conclusion 7, which has not been in any significant way elucidated in the commentary, should be deleted from the text. The term “intrinsic” in the same conclusion also merits further elaboration. The Commission’s work on general principles of law relates primarily to the construction and mechanics of these principles, he noted, stressing that general principles of law should be resorted to only when a particular issue cannot be resolved as a whole or in part by other rules of international law.
On “Sea-level rise in relation to international law”, he recalled that one of the aims is to interpret the Law of Sea Convention to effectively address the issue; however, the treaty does not have universal acceptance. To ensure a legitimate outcome, there is a need for parallel analysis and discussion of applicable customary rules. The issue of intangibility of boundaries, whether of national territory or maritime areas, is of fundamental importance because it concerns the much broader question of maintaining international peace and security. In the Convention, there is no self-standing and overarching principle of equity, which only applies as an element of the specific rules that refer to it, he observed.
Turning to “Non-legally binding international agreements”, he expressed support for its inclusion in the Commission’s programme of work. Nevertheless, as the term “international agreements” is above all used with reference to binding instruments, he encouraged the change of the topic’s title to “Non-legally binding international instruments”.
With respect to the Commission's working methods, he called for more clarity on the stage that the work on specific provisions within topics has reached. Given that a provision or standard can be in one of several quasi-legislative phases that are not always clearly discernible, he advocated for including a table with a general scheme of the standard or rule-making process for every topic in the report.
KERLI VESKI (Estonia), taking up “General principles of law”, welcomed the draft conclusions’ departure from the term “civilized nations” found in the Statute of the International Court of Justice and adopting instead the term “community of nations”. She also said she agreed that the draft conclusions should not use the term “international community of States as a whole” found in the Vienna Convention on the Law of Treaties, in the context of jus cogens norms, because it sets an unnecessarily high threshold. Further she underscored that the essence of general principles of law should not change despite the modernization of terminology. She also observed that the community of nations must recognize the principles as “intrinsic to the international legal system”. This requirement ensures that the principles meet the criteria set for general principles of law as a source of international law and have passed the scrutiny by the community of nations.
Turning to “Sea-level rise in relation to international law”, she aligned herself with the European Union, recognizing the Law of the Sea Convention as the fundamental pillar of ocean governance, which must remain the framework for this topic as well. She welcomed the conclusion of the Study Group that the principle of uti possidetis has limited application in relation to maritime boundaries and that the principle of stability of and respect for existing boundaries and their immutability is a rule of customary international law. The same principle of stability of and respect for existing boundaries would apply to maritime boundaries, which share the same function of demarcating the extent of the sovereignty and the sovereign rights of a State. She noted that the real future challenge will be the case when a State territory is completely covered by the sea or becomes uninhabitable.
On “Other decisions and conclusions of the Commission,” she expressed appreciation to the Secretariat for the website on the work of the Commission, noting it is “utterly important for the website to be kept updated, user-friendly and informative”. She further looked forward to future work on the topic “Non-legally binding international agreements” included in the Commission’s programme of work.
CSONGOR CSERGŐ (Hungary) welcomed the inclusion of “Non-legally binding international agreements” in the Commission’s programme of work, highlighting the importance of addressing challenges posed by the fragmentation of international law. He also welcomed the Commission’s decision to hold a seventy-fifth anniversary commemorative event in Geneva in 2024, including the meeting with legal advisers from Ministries of Foreign Affairs dedicated to its work. “Finding the right balance between topics leading to different type of outputs by the Commission is of the utmost importance,” he stressed.
Turning to “Sea-level rise in relation to international law”, he associated himself with the European Union, noting that although Hungary is a landlocked country, it recognizes the challenges caused by sea-level rise. He pointed out that a clear and transparent analysis of international legal regulations addressing climate change is essential for tackling these phenomena. Also noting that the co-Chairs drew several preliminary conclusions, most of which relate to maritime determination and updating of baselines, he said that even though he agrees with the importance of maintaining legal stability, further considerations must be given to the most appropriate form to reflect these conclusions in the 2025 report.
TANIA VON USLAR-GLEICHEN (Germany), aligning herself with the European Union and speaking on “Sea-level rise in relation to international law”, recalled her delegation’s prior submission relating to interpreting the provisions of the Law of the Sea Convention that relate to the stability of baselines. A contemporary reading of such provisions allows for the freezing of baselines and the outer limits of maritime zones once they are duly established, published and deposited in accordance with the Convention. Further, there is no obligation for coastal States to regularly review and update such baselines, she said, pointing out that there is an increasing convergence of States that share this view. In fact, no single State has contested this approach. She also stated that the principle of legal stability should equally apply to baselines and maritime zones derived from islands and rocks when these natural land features are subsequently submerged due to sea-level rise.
RENÉ LEFEBER (Netherlands), speaking on “General principles of law”, welcomed that the category of general principles of law formed within the international legal system was maintained and that further clarification on the meaning of “intrinsic to the international legal system” was provided. However, the disagreements amongst the members of the Commission regarding the existence of such a category should be included in the body’s reports and removed from the draft commentaries. The Netherlands has requested a report of the Dutch Advisory Committee on Public International Law according to its practice and will share it, together with the Government’s response, with the Commission, he reported.
Turning to “Sea-level rise in relation to international law”, he noted that his country has not yet taken a position on whether the Law of Sea Convention contains an obligation to regularly review and update baselines and outer limits of maritime zones. The comments and observations of the Netherlands submitted to the Commission in 2022 referred to the Dutch “basic coastline”, which is to be understood as the country’s sandy coastline preserved with sand nourishments and not to be confused with “baselines”. The country’s legal baselines remain ambulatory and have not been fixated. The data that the Netherlands has deposited with the Secretary-General, including information on its baselines, is not necessarily used for navigation. The nautical charts that are used for that purpose do not reflect the country’s baselines, he added.
On “Other decisions and conclusions”, he said that there is a growing interest among States to develop a better understanding of the use of “Non-legally binding international agreements” in international relations and the consequences thereof. That has also led to a discussion on the topic in the Committee of Legal Advisers on Public International Law of the Council of Europe. In January 2023, the Netherlands hosted a symposium, “Independent Advice on Public International Law”, during which a Commission member elaborated on the contribution to its work by the Dutch Advisory Committee on the related issues. He reported that now, when preparing written submissions on the work of the Commission, his country will also provide it with a report of the Dutch Advisory Committee and the Government’s response to it.
RICHARD C. VISEK (United States), expressing his country’s strong support the work of the International Law Commission, noted that a convention on crimes against humanity would fill an important gap in the international legal framework — one that is critical now more than ever.
Turning to “General principles of law”, he pointed to the possibility that litigants in international disputes may draw upon the Commission’s work to argue for obligations in ways that States do not agree with or did not intend. Therefore, the Commission should be careful not to engage in an exercise of progressive development on a topic concerning one of the sources of international law. Highlighting areas of concern, he spotlighted draft conclusion 7, which provides that a particular principle “formed within the international legal system” may be considered a general principle of law. He said his delegation is not yet convinced that there is sufficient practice by States to assess whether or how general principles can be formed solely on the international plane.
Regarding “Sea-level rise in relation to international law”, he encouraged States that have not yet done so to take steps now to determine, memorialize, and publish their coastal baselines in accordance with the Law of the Sea Convention. Such actions will assist other States in implementing their policies on sea-level rise. He noted his Government’s commitment not to challenge lawfully established baselines and maritime zone limits that are not subsequently updated despite sea-level rise caused by climate change. He further urged States that have not made similar commitments to do so to promote the stability, security, certainty and predictability of maritime entitlements that are vulnerable to sea-level rise. For some States, particularly low-lying island States in the Pacific Ocean, increasing sea levels pose an existential threat, he said, adding that sea-level rise driven by human-induced climate change should not cause any country to lose its statehood or its membership in the United Nations.
Taking up “Other decisions and conclusions”, he noted the Commission’s decision to include the topic “Non-legally binding international agreements”. However, he called for the title to be changed to “non-legally binding international instruments” to reflect the position of many States that the term “agreement” is reserved for those of a legally binding nature. He further recalled longstanding concerns with the draft articles under the topic, “Immunity of State officials from foreign criminal jurisdiction”, stressing that he does not agree that draft article 7 is supported by consistent State practice and opinio juris and therefore does not reflect customary international law. Yet, despite the concerns his delegation and others have articulated, the Commission adopted the draft articles at the first reading last year. He stressed that their likelihood of adoption by States as an international convention will be greatly reduced if they continue not to reflect customary international law and diverge from the expressed views of States.
MATEUS KOWALSKI (Portugal), speaking on “Other decisions and conclusions of the Commission”, welcomed the Commission’s recommendation to hold the first part of its seventy-seventh session in New York in 2026. Noting that the Commission’s products may have different formats and outcomes, he highlighted the decision of the Sixth Committee to prioritize consensus — even when only a few States oppose moving forward — when the Commission has “expressly” recommended the adoption of draft articles as a convention. Stressing that States should always strive for consensus, he added: “It is not a procedural rule or a dogma, and it cannot be used as a veto.” If States do not seek to improve their working methods, they risk impairing and undermining the potential of the Commission’s and Committee’s contributions, he warned.
Turning to “General principles of law”, he recalled that in 2022 his delegation expressed its understanding that paragraph 2 with the commentary thereto was not sufficiently clear regarding the distinction between general principles of law and international customary law. As the draft conclusions still raise questions, he encouraged the Commission to avoid the risk of drawing a “faint line” between sources of international law, where the distinction of general principles from international conventions and customary law is not as clear as it could be. He further welcomed the draft conclusions and commentaries on the relevance of other subsidiary means for the determination of general principles of law, including UN resolutions, documents from international expert bodies and the Commission’s outputs.
On “Sea-level rise in relation to international law” he said that concerning the issue of whether the baselines are fixed — with regard to the concept of legal stability and the principle of immutability of maritime boundaries — he concurred that the Law of Sea Convention does not explicitly require States Parties to keep the baselines and outer limits of maritime zones under constant review. Ambulatory baselines implicitly create legal uncertainty that can put friendly relations among nations at risk, he said, emphasizing that those are legal values that are inherently protected in article 7, paragraph 2 of the Convention. On the relevance of equity to the sea-level rise phenomenon, he pointed out that that equity is not an independent source of international law but rather a normative concept. To that end, he underlined the importance of determining what measure that principle is legally relevant in the context of sea-level rise. Furthermore, the permanent sovereignty over natural resources is closely intertwined with the question of whether baselines are fixed or ambulatory under the Convention. If they are ambulatory, sea-level rise will inevitably affect the delineation of maritime entitlements, he observed, underscoring that the rights and obligations of States associated with certain maritime areas are likely to be affected. If the baselines are fixed, the maritime entitlements remain unchanged, as do the rights and obligations associated with them, he added.
FANNY RATHE (Switzerland), on “General principles of law”, welcomed that the Commission’s draft conclusions treat this topic in a definitive, logical and exhaustive fashion. Noting the two-step analysis regarding the criteria for identifying general principles of law derived from national legal systems — contained in draft conclusion 4 — she spotlighted the “salient finding” that not all such principles are suitable for transposition to the international legal system. This observation, further reflected in draft conclusion 6, illustrates how national and international law can have a great deal in common, yet still be distinct. On draft conclusion 5, she said her delegation shares the Commission’s assessment that the phrase “principle common to the various legal systems of the world” should be interpreted as broadly as possible. Further, she expressed agreement with the Commission that all branches of national law may be relevant for the identification of a general principle of law.
She also welcomed ongoing work on the topic of “sea-level rise in relation to international law” — a pressing issue that must be addressed. Additionally, she said that the topic “subsidiary means for the determination of rules of international law” is the latest addition to the Commission’s work on the sources enumerated in article 38 of the Statute of the International Court of Justice. On that, she said that the Commission’s reflections on the sources of international law are useful.
NASIR UDDIN (Bangladesh), speaking on “Sea-level rise in relation to international law”, drew attention to the issue of the preservation of baseline and maritime zones, referred to article 7, paragraph 2 of the Law of Sea Convention. Baselines and maritime zones established by any State in line with the Convention should remain unchanged in the event of sea-level rise, he stressed, welcoming the ongoing proceedings in the International Court of Justice and the International Tribunal for the Law of the Sea for advisory opinions on the legal implications of climate change and sea-level rise. Issues such as immutability and intangibility of maritime boundaries as well as the principle that “the land dominates the sea” merit the Commission’s further deliberation for proper and deeper understanding among States. The Commission’s work on this topic law must be in line with the fundamental principles of the Law of Sea Convention, he said.
CLAUDIO TRONCOSO REPETTO (Chile), taking up “General principles of law”, noted that it was generally agreed in both the International Law Commission and the Sixth Committee that reference to the expression “civilized nations” in article 38, paragraph 1 (c) is anachronistic and should be avoided. In that regard, he voiced his support for the use of the expression “community of nations”. He thanked the Commission’s clarification of the word “intrinsic” in the context of conclusion 7 — which means “that the principle is specific to the international legal system and reflects and regulates its basic characteristics”. However, taking this definition into account, he said he did not agree that paragraph 1 would be very restrictive and could exclude other possible principles that — although not intrinsic to the international legal system — could arise. The current state of international law on the matter would not acknowledge the existence of such a category of principles that were not intrinsic to the international legal system.
Turning to “Sea-level rise in relation to international law,” he stressed that the harmful consequences of climate change are reaching the level of an unprecedented emergency. Countries from of all regions of the world, including Chile, have agreed that “legal stability” is subordinate to and intrinsically linked to preserving maritime areas as they were established before the effects of sea level rise, as well as the decision of Member States affected by sea-level rise to not update their map coordinates setting out their baselines — including when the physical coast is moving inland due to sea-level rise. He stressed that no State — not even those with national legislation that provides for moving baselines — has questioned the proposed interpretation of the Law of the Sea Convention that would allow fixed baselines to be established. He also noted that States have emphasized that legal stability is one of the main goals of the Law of the Sea Convention.
Taking up “Other decisions and conclusions”, he spotlighted the decision to include the topic “Non-binding international agreements” in the programme of work. He cited the work of the Special Rapporteur on the matter, establishing criteria that distinguish, under international law, between non-binding legal agreements and those that are legally binding, and aiming to obtain clarity regarding the possible legal impact, direct or indirect, that may derive from non-binding international legal agreements. He said he agreed that the issue should be limited to treaties between States, between them and international organizations, to see whether there is any draft that refers to these non-binding agreements, including those agreements that are of doubtful character or informal in nature.
NOAM CAPON (Israel) said that, since October 7, “time has stood still for many Israelis and Jews, not just in Israel but around the world”, adding that his country is still under attack. Reiterating his demand for the immediate release of 200 Israeli abductees by Hamas, who are being held in violation of international law, he said this is a critical humanitarian imperative. Noting that the Sixth Committee is a venue where the international legal community convenes, he said it is imperative that international lawyers remain aware of the violation and call out these atrocity acts.
Turning to the Commission’s report, he highlighted that the success of the Commission is reflected by whether Member States view its products as both authoritative and practical, encouraging it to pay due regard to the views and comments of the Government on draft articles and make best efforts to incorporate them. It is incumbent on the Commission — in working on any topic of its agenda — to survey the practice of States as comprehensively and accurately as possible, he stressed, emphasizing that it should bear in mind critical distinction between codification and progressive development of international law. The Commission should make those distinctions clear, where appropriate, he added. Furthermore, the text should reflect and be underpinned by State practice and opinion juris, also indicating the extent of agreement on each point in the States’ practice along with divergences and disagreements that may exist, he noted.
Regarding “General principles of law”, he acknowledged the adoption of the draft conclusions and commentaries on the first reading, noting that his delegation will submit comments and observations by the deadline. Emphasizing the importance of draft conclusion 5, in particular its call for comparative and representative analysis for legal systems worldwide to determine the existence of general principles, he said that it should include smaller States and systems with mixed legal traditions. While expressing his agreement with draft conclusion 10, he voiced a reservation regarding the proposed second category of general principles. The existence of such a category lacks sufficient support for the State practice and other sources of international law, he stressed, also underlining that it can create confusion with customary international law. General principles remain primarily domestic, even if they can influence the work of international tribunals and are applied in international adjudication procedures, he added. The absence of consensus regarding these principles as a source of international law maybe be a compelling reason not to consider the principles of this category as a source of international law. Turning to draft conclusions 3 and 7, he suggested that the draft commentaries reflect Member States’ diverging views on this issue during the debate.
SEYED ALI MOUSAVI (Iran), on “General principles of law”, stressed, among other points, that the Commission’s mandate “is better served” if a clear distinction is observed between general principles of law as set out in article 38 of the Statute of the International Court of Justice and principles of international law enumerated under different authoritative instruments. Unlike principles of international law intrinsic to the international legal system, general principles of law must necessarily derive from various domestic legal systems. He also expressed agreement with the proposition in draft conclusion 6 that a general principle of law that is common to domestic legal systems may be transposed to the international legal system only if it is compatible with the existing fundamental principles of the international system. Underscoring the importance of State consent in this regard, he underscored that no new general principle may be transposed to the international legal system if it lacks — or challenges in any manner — the element of State consent.
Turning to “Sea-level rise in relation to international law”, he said that this topic should be considered in line with the basic legal parameters for Statehood under international law, including the law of the sea as codified in the Law of the Sea Convention. Noting the Study Group’s observations regarding the principle of uti possidetis, he said that it is “arguable” whether such a principle can be relied on as a guiding principle for maintaining the immutability and continuity of existing delimitations. He also recalled that General Assembly resolution 77/276 requested the International Court of Justice to issue an advisory opinion on States’ obligations with respect to climate change, which included the topic of sea-level rise. As that resolution focuses on one assumed cause of climate change, he underlined his delegation’s logical expectation that the Court consider the matter holistically. On that, he emphasized that the imposition of unilateral coercive measures prevents targeted countries from meeting their environmental obligations.
On “Other decisions and conclusions of the Commission”, he said that the title of the topic “Non-legally binding international agreements” should exchange the word “agreements” for “instruments”. He also said that a working group for the topic “Immunity of State officials from foreign criminal jurisdiction” should be established at the Commission’s seventy-fifth session “well before the second reading” of the relevant draft articles. Welcoming the Commission’s initiative to hold meetings with national legal advisers, he suggested that — to take full advantage — the Commission should conduct multiple days of meetings rather than holding them only over one-and-a-half days.
Finally, he expressed regret that the representative of the occupying regime in Palestine attempted to politicize the Committee’s work to whitewash the atrocities it is perpetrating against the Palestinian people — particularly those living in Gaza. He also condemned the war crimes and crimes against humanity being committed by the Israeli regime against the Palestinian people, which are brutal, indiscriminate and amount to collective punishment.
PABLO AGUSTÍN ESCOBAR ULLAURI (Ecuador), regarding “General principles of law”, expressed agreement that there are two categories — those derived from national legal systems and those formed within the international legal system. Transposition of principles from the different legal systems of the world to the international legal system should be determined on a case-by-case basis and such principles should not be too prescriptive. In the commentary on conclusion 7, the Commission could also analyse additional examples, such as the Nuremberg principles, which recognized the direct applicability of international law regarding individual responsibility for crimes under international law as well as the general principle of international law’s independence from national law. Also important is to clarify that conflict between a general principle of law and a norm in a treaty or a customary norm must be resolved based on generally acceptable principles of interpretation and conflict resolution under international law, he noted.
Turning to “Sea-level rise in relation to international law”, he welcomed the progress achieved by the Commission’s Study Group. The analysis of the topic must be based on the sources of international law, including applicable treaties, such as the Law of Sea Convention, customary norms and general principles of law. As sea-level rise is an issue on which there are not any directly applicable conventional or customary norms, he said, some general principles of law can contribute, for instance, to an updated interpretation of the Law of Sea Convention.