Continuing Debate on International Law Commission Report, Speakers Tackle Practice of Treaty Interpretation, Rising Sea Levels
As the Sixth Committee (Legal) continued its consideration of the International Law Commission’s annual report, delegates shared their views on both the practical nature of the tools provided by the Commission for the identification of customary international law, as well as that body’s plans to expand their programme of work to address contemporary concerns. (For background, see Press Releases GA/L/3570 and GA/L/3580.)
The representative of New Zealand, emphasizing the fact that international law was not a static entity, said the Commission’s work should take into account a growing range of modern‑day challenges for the international community. With that in mind, the Commission’s decision to include “Sea‑level rise in relation to international law” in its long‑term programme of work illustrated that it was a topic of pressing concern around the globe. “This is an issue close to home for New Zealand and our Pacific Island neighbours, some of whom are experiencing sea‑level rise that is nine times the global average,” she pointed out.
Echoing those sentiments, the delegate of the Federated States of Micronesia said that the inclusion of the matter of sea‑level rise is a welcomed one, as is the Commission’s proposal to have a study group lead the exploration of the subject. Such a group will enable a mapping of the relevant legal implications without getting bogged down in technical and contentious principles or guidelines, she said. States should also be allowed to contribute to and participate in the work of the group.
Delegations also debated various aspects and concepts included in the Commission’s first cluster of topics, including “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” and “Identification of customary international law”.
The representative of the Russian Federation, referencing the Vienna Conventions as the basis of the draft conclusions on “Subsequent agreements and subsequent practice”, said that the Conventions were paramount with regard to interpretation of treaties. In other words, if the text is clear, then other means of interpretation may not be necessary or would only play a secondary role.
South Africa’s delegate said that although the 1969 Vienna Convention on the Law of Treaties is the primary source of the rules of treaty interpretation, the Commission provided some much welcome clarity in its draft conclusions. As set out in article 31(1) of the Convention, the general rule and means of treaty interpretation is that a treaty should be interpreted in good faith and in accordance with the ordinary meaning of the terms of the treaty in their context and with its object and purpose remaining paramount.
Sierra Leone’s delegate also noted that subsequent agreement and practice have been elevated to the level of “the ordinary meaning”, “context”, “object and purpose” in articles 31 and 32 of the Vienna Convention. In addition, draft conclusion 12 on the pronouncements of expert treaty bodies lacks clarity as to the extent State practice has been examined, he cautioned. However, he praised the texts of the draft conclusions in general, noting they manifested rigor as well as deference to States’ comments.
In a similar vein, the representative of Chile lauded the rigor of the Special Rapporteur’s work on the draft conclusions of “Identification of customary international law”. The draft conclusions reached would be a practical tool for academics, judges, litigants, States and more in their endeavours, she said. While highlighting conclusion 4, which deals with States’ practices and their principal role in the formation of customary international law, she noted that international organizations also had a role to play in that regard, depending on their mandates.
Ecuador’s representative said that the Commission identified two elements for the identification of customary international law, which are general practice and opinio juris. This is of great use to all legal practitioners, he emphasized, as national judges often find themselves having to decide upon the existence of customary international law in particular cases.
Also speaking were representatives of Romania, Thailand, Mexico, Turkey, Sri Lanka, Tonga, Canada, United Kingdom, Togo, Israel, Papua New Guinea, Ukraine, Cyprus, Cuba, Fiji, Samoa, Republic of Korea and Australia.
The Sixth Committee will next meet at 3 p.m. on Thursday, 25 October, to continue consideration of the first cluster of topics from the report of the International Law Commission and to take up the second cluster of topics.
Statements on Cluster I
VICTORIA HALLUM (New Zealand), associating herself with the Pacific Islands Forum Group, said that international law is not static. The Commission’s work continued to be important in the face of a range of contemporary challenges, such as climate change, that comprise a pressing concern for the international community.
While the draft conclusions on “Identification of customary international law” can be expected to be a helpful reference point for practitioners, she noted that draft conclusion 4.2 called for some caution. Expressing hesitation about the proposition that the practice of an international organization itself may contribute to the formation of customary international law, she said it would be helpful to articulate clearly in the text of the draft the “certain cases” in which the practice of an international organization may do that. It remains difficult to identify from the commentaries those cases in which the practice of an international organization will be relevant, given that the commentaries state “it may be the practice of only some, not all, international organizations that is relevant”, she pointed out.
Turning to the Commission’s decision to include “Sea‑level rise in relation to international law” in its programme of work, she said the topic reflected a pressing concern of the international community as a whole. “This is an issue close to home for New Zealand and our Pacific Island neighbours, some of whom are experiencing sea‑level rise that is nine times the global average,” she said, recalling his country’s Prime Minister’s words during the United Nations Climate Week that coastal States’ baselines and maritime boundaries should not have to change because of human‑induced sea‑level rise.
ALINA OROSAN (Romania) said the problems raised by rising sea levels are justification enough for the Commission to include the topic “Sea‑level rise in relation to international law” in its agenda of work. However, the topic should not attempt to modify existing international law. Instead, it should merely analyse the way existing international law addresses those problems.
She went on to welcome work on “Subsequent agreements and subsequent practice”, expressing general agreement with the text of the conclusions and of the commentaries attached to them.
Concerning “Identification of customary international law”, she expressed her endorsement of the draft conclusions, saying they accurately and comprehensively describe the current state of international law on the matter. Regarding the issue of whether the practice of international organizations is relevant for the identification of rules of international customary law, she underlined that such practice might contribute to the identification of customary law, particularly in the case of international organizations to which States have transferred competencies. Forms of evidence of acceptance as law should be assessed in context, she said.
CHAVANART THANGSUMPHANT (Thailand) commenting on the draft conclusions on “Subsequent agreements and subsequent practice”, said that subsequent agreements and practice, as stated in article 31 of the Vienna Convention, are to be considered solely within the context of treaty interpretation. Any subsequent agreement with a view to amend the treaty is subject to article 39; subsequent practice can never result in amending the treaty. In addition, subsequent agreements and practice support only contemporaneous interpretation. Using the subsequent agreements and practice for an evolutive interpretation should be considered with caution. She therefore recommended using the “evolutive interpretation” only where the subsequent agreements and practices are used to determine the intention of the parties whether to allow an evolving meaning of a treaty term.
Turning to “Universal criminal jurisdiction”, she said that principle must be distinct from the obligation to extradite or prosecute as well as international criminal court jurisdiction. In addition, the principle of universal criminal jurisdiction should not be an exception to the application of immunity ratione personae.
ALEJANDRO ALDAY (Mexico), on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, said he supported the recommendation that the General Assembly annex the conclusions to a resolution and ensure they be disseminated as widely as possible. He noted the content of conclusions 2, 4, 5, 6, 7 and 10 and highlighted that they favour a balance between the formal mechanisms of interpretation and those of an operative nature.
Turning to “Identification of customary international law”, he said that the Commission’s work reflects a vast analysis in this area and will be a useful tool for all legal practitioners. He also emphasized the topic’s clarifications on the assessment of evidence for each of the constituent elements of custom, noting it would facilitate the legal analysis of this kind of rule.
He acknowledged the Commission on its seventieth anniversary and its enormous contribution to the codification and progressive development of international law. However, challenges face the Commission and ways to improve its work in the future should be examined. In particular, the interaction between Member States and the Commission must be bolstered through a more fluid and in‑depth dialogue. He also highlighted the need for greater parity regarding the gender makeup of the Commission.
He thanked the Commission for including “Sea‑level rise in relation to international law” in its long‑term programme of work, as well as “Universal criminal jurisdiction”. On sea‑level rise, he said it is an urgent matter of paramount importance for the international community.
FIRAT SUNEL (Turkey) said that the International Law Commission deserves the great respect and gratitude of the international community. However, after 70 years, only four of the Commission’s members are women and the total number throughout its history is just seven.
On the Commission’s long‑term programme of work, he said the developments on the topic “Universal criminal jurisdiction” are being followed by his Government with great attention and interest. In this regard, the work of the Commission would yield a result capable of filling the gaps of impunity.
Concerning “Sea‑level rise in relation to international law”, the topic has a wide range of impacts, he said, adding that he looks forward to which dimensions of the issue the Commission will ultimately address, including its relationship with global warming or its consequences in areas such as the concept of statehood, mobility, human rights and maritime boundaries. It should be noted that an excessively broad topic could be counterproductive. Therefore, the most viable option might be to focus on environmental causes and effects.
On “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he commented that he was unsure about a few sections, including draft conclusion 5, paragraph 2 and draft conclusion 10, paragraph 2.
He then turned to “Identification of customary international law”, noting that the items where his delegation have taken a different approach from the Commission are paragraphs 2 and 3 of draft conclusion 4, as well as certain parts of draft conclusions 11 to 15.
AMRITH ROHAN PERERA (Sri Lanka), on “Identification of customary international law”, noted that custom plays an important role in the contemporary international legal order - notwithstanding the emergence of the multilateral treaty‑making process - and highlighted the wide agreement on the “two‑element approach” used in the draft conclusions. Conclusion 11 sets out conditionalities under which a rule set forth in a treaty may reflect a rule of customary international law. This is a vital provision which injects a degree of clarity to the dynamic and complex relationship between the two principal sources of international law.
Turning to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said that the draft conclusions are supported by rich and comprehensive commentaries that reflect the jurisprudence of international courts and tribunals as well as the practice of States and international organizations. Highlighting conclusion 8 as being of particular legal interest, he added that it addresses the general question of whether the meaning of a term of a treaty is capable of evolving over time, a question that has arisen time and again in proceedings before courts and tribunals.
ZAMAKHINA EVGENIIA (Russian Federation) said the Commission has not only contributed to the progressive development and codification of international law but has also changed the landscape of international law. Spotlighting her country’s law experts who served as members of the Commission, she lauded that body for embodying the thinking of all legal systems of the world. However, it would be useful to slow down the pace of the Commission’s work. That would give States the opportunity to analyse the Commission’s work more carefully, as well as enable the Commission to develop drafts that States need, taking into account their opinions. Disagreements from States should be treated seriously. While the General Assembly takes note of a relevant draft and draws the attention of States to that document, national and international judicial authorities often use it as customary law, despite the differences expressed by Member States. In addition, although the Commission prepares high‑quality drafts, they do not always reflect customary international law.
Observing that the draft conclusions on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” are based on the Vienna Conventions, she said that those Conventions are the basis of interpretation. If the text is sufficiently clear, then other means of interpretation may not be necessary or can play a subsidiary role. Noting that the draft conclusions address the role of the practice of international organizations, she added that “we should distinguish between different kinds of practice”. The practice of a body representing all Member States can constitute a practice or agreement, but in the case of limited composition bodies or officials of an organization, it is not the practice itself which is important but the response of Member States to that practice.
Turning to “Identification of customary international law”, she said that the draft conclusions on that would help counter the current trend in national and international courts where they determine the presence of a customary law based on opinions and limited practices. The draft notes that it has not covered the relationship between different sources of law; such an approach seems only partially justified. Contemporary international law is quite developed, although it has less certainty than domestic legal systems. It is difficult to find an area of international relations that will not be affected by a treaty or a jus cogens norm. Therefore, it would be a good idea to reflect that practice or opinio juris cannot become a rule of international law if it is inconsistent with a treaty norm or jus cogens norm.
JANE J. CHIGIYAL (Federated States of Micronesia), associating herself with the Pacific Islands Forum Group, said that she welcomes the decision of the Commission to place the topic of “Sea‑level rise in relation to international law” on its long‑term programme of work. The issues that should be examined by the Commission include the implications of sea‑level rise with respect to the Law of the Sea, statehood, human rights and human migration. The Commission’s proposed study group is ideal for the examination of the topic.
She went on to say that a study group will allow for a comprehensive mapping exercise of the relevant legal implications of sea‑level rise, without being bogged down in the production of highly technical and potentially contentious draft articles, principles or guidelines. States must also be allowed to participate in the work of the study group. Further, while sea‑level rise raises serious issues of international law with respect to small island developing States, it is an issue that is of relevance to the entire international community. Sea‑level rise could induce human migration, which is a matter of concern for all, including States that are transition and destination countries for such migrants.
VILIAMI VA'INGA TŌNĒ (Tonga), associating himself with the Pacific Islands Forum Group, turned to the topic “Sea‑level rise in relation to international law” and emphasized that the consequences of rising sea levels prompt several important questions relevant to international law, including national sovereignty and security. He welcomed the Commission’s proposed scope of study on specific issues which tie into the constituent elements of “the State” as highlighted in part IV of annex B of the report, namely the Law of the Sea, statehood and protection of persons affected by rising sea levels. It is important to take into account interrelated issues, such as human, environmental, resource security and migration. It is also crucial, during the study, to uphold the existing rights and entitlements of States, particularly maritime boundary delimitation pursuant to the stipulations of the 1982 United Nations Convention on the Law of the Sea. For countries like Tonga, the urgency of the situation calls for immediate and in‑depth study by the Commission, which should move the topic to its active programme of work.
ALAN KESSEL (Canada), commenting on “Sea‑level rise in relation to international law”, noted the concerns expressed by vulnerable low‑lying coastal States and small island developing States about sea‑level rise, a climate change driven phenomenon. His country is also directly impacted by that as a consequence of its geography. With the longest coastline in the world, Canada, and especially its northern coastline, is vulnerable to the effects of climate change. The legal implications of sea‑level rise - including Law of the Sea issues, statehood issues, and protection of persons affected by the phenomenon - are increasingly being raised in the United Nations. Expressing strong support for the Commission’s decision to include the topic in its programme of work, he also cautioned that consideration of some of the broader issues might unnecessarily complicate the task even further.
MICHAEL IRMAN KANU (Sierra Leone), associating himself with the African Group, welcomed the draft conclusions on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”. Those texts manifested rigor and deference to the comments of States. Stressing that subsequent agreement and practice have been elevated to the level of “the ordinary meaning”, “context”, “object and purpose” in articles 31 and 32 of the Vienna Convention, he added that conclusion 12 on the pronouncements of expert treaty bodies does not make it clear to what extent State practice has been examined.
Turning to “Identification of customary international law”, he highlighted their comprehensiveness and noted that in conclusion 6, “inaction” is included as a form of practice by States. While appreciating the explanation given to the use of the qualifying phrase “under certain circumstances” in paragraph 1 of that conclusion, a less ambiguous term, such as “deliberate” could have been employed to qualify inaction. This would have met two important requirements: the awareness of the State of the practice and the conscious refrain from acting as opposed to an assumed deliberate abstention from acting, he said.
ANDREW MURDOCH (United Kingdom) said that he welcomed the Commission’s decision to include the topic “General principles of law” in its programme of work. Also welcoming the inclusion of “Sea‑level rise in relation to international law”, he noted the Commission’s decision to include the topic of “Universal criminal jurisdiction”. It is clear there is a diversity of views on the scope of that subject and that State practice is not sufficiently advanced for the consideration of the topic by the Commission. He congratulated the Commission on its seventieth anniversary and expressed his appreciation for the contributions of all those at the events in Geneva and New York.
Turning to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he welcomed the 13 draft conclusions. These give helpful guidance to States, international organizations and courts when interpreting treaties. It is a complex area of treaty law and the Special Rapporteur’s work has been detailed and rigorous, making for a constructive contribution to the art of treaty interpretation.
Turning to “Identification of customary international law”, he welcomed the adoption of 16 draft conclusions on second reading. He also highlighted the importance of the clarifications made to the conclusions, in particular those made to conclusion 4 and its commentary.
MARIANA DURNEY (Chile), lauding the Commission’s work on “Subsequent agreements and subsequent practice” for accurately systematizing the precedents and norms in this area, focused on its theoretical clarity from an academic standpoint. Highlighting conclusion 5 regarding identification of conduct that constitutes subsequent practice, she said it emphasizes that what is relevant is the conduct of the party in the application of the treaty. Thus, that conclusion spotlights the importance of the author of the conduct and the aim of that person. The conduct of actors not exercising the application of the treaty are not relevant, she stressed.
Turning to “Identification of customary international law”, she praised the outstanding work and scientific rigor of the Special Rapporteur. The conclusions will serve as a practical tool to serve academics, judges, litigants, States and international jurists. On conclusion 4, she noted that it correctly articulates that it is States’ practices that play a principal role in the formation of customary international law. However, this is without prejudice to the idea that the conduct of international organizations may also play a role in that to the extent that the practice on which it is based is included in the mandate of such organizations. The commentary to that conclusion clarifies that the practice attributed to international organizations is carried out by their competent bodies and not by States acting within them or in relation to them.
DEKALEGA FINTAKPA LAMEGA (Togo), associating himself with the African Group, said that he would like to highlight the immense contribution the Commission has made to the codification of international law since its founding. He also recognized the assistance provided by the Codification Division. Further, the Sixth Committee is a vital partner to the Commission and should continue to help it carry out its noble mission.
Turning to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he recalled the adoption of the draft conclusions on the subject and the Commission’s recommendation that those texts be available to States and all persons who might have to interpret treaties. His Government will analyse the 13 draft conclusions and if necessary will make its own comments.
On “Identification of customary international law”, he said he welcomed the adoption in second reading of the draft conclusions on this topic. Subject to any future comments his Government might make on the draft conclusions, he echoed the concerns within the Commission regarding the scope of international organizations found in draft conclusion 4.
Regarding the seventieth anniversary of the Commission, he noted the celebrations that were carried out in New York and Geneva. He welcomed the meeting in New York, which was followed by a half day of dialogue with delegates from the Sixth Committee. He also welcomed the fruitful exchanges between members of the Sixth Committee and the Commission at the event.
Turning to the Commission’s future programme of work, he expressed his support for the inclusion of “General principles of law”. In addition, Togo is a coastal State confronted by climate change and the worrisome advance of the sea. Therefore, he said he hoped that including “Sea‑level rise in relation to international law”, on the long‑term programme of work will lead to an in‑depth legal analysis of this important issue. Regarding “Universal criminal jurisdiction”, he said that, despite the fact that a similar subject on the scope and application of universal jurisdiction is already being discussed by the Sixth Committee, the issue should continue to be studied.
SANDEA DE WET (South Africa), aligning herself with the African Group, said she was pleased that the commemorative events offered a reflection on the achievements of the Commission in the progressive development of international law and its codification over the past 20 years. The only disappointment was the composition of the Commission, with just 7 women in a membership of 24.
Giving a detailed overview on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, she said, among other things, that it goes to the heart of the work every international lawyer does - that of treaty interpretation. While the 1969 Vienna Convention on the Law of Treaties remains the primary source of the rules of treaty interpretation, the clarity that the Commission has provided in its draft conclusions is welcomed. The general rule and means of treaty interpretation as set out in article 31(1) of the Vienna Convention is that a treaty should be interpreted in good faith in accordance with the ordinary meaning of the terms of the treaty in their context and with its object and purpose remaining paramount.
On “Identification of customary international law”, among her comments she said that the topic is an important source of public international law, notwithstanding the plethora of treaties whose scope and volume have increased in recent times. To this end, the dissemination of the 16 conclusions provides a useful guide for public international law actors. She concurred with the “two‑element approach” for determining the existence and content of rules of customary international law – an approach that enjoys broad support, she observed.
Regarding “Sea‑level rise in relation to international law”, she noted that the Commission sets out that the method of work would be a study group that only deals with the legal implications of sea‑level rise and not with protection of the environment or climate change per se. This proposed format is appropriate due to its flexibility. However, some of the sub‑issues that could be analysed are perhaps too political and require reconsideration. She also noted that concerns may be raised in relation to whether State practice is at a sufficiently advanced stage to warrant progressive development and codification. International law is often accused of being too reactive and there is a chance to act a little faster to address the problems that will flow from sea‑level rise, she said.
LUIS XAVIER OÑA GARCÉS (Ecuador), associating himself with the Community of Latin American and Caribbean States (CELAC), reaffirmed his country’s commitment to Article 13 of the United Nations Charter. It is essential not only to codify existing international norms but also develop international law to align it with changing realities.
Turning to “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he added that the work of the Commission on that represented an authentic means of interpretation under the general rules specified under article 31 of the Vienna Convention. The Commission has provided valuable, didactic clarification.
The same, he said, is true for the draft conclusions on “Identification of customary international law”. Noting that a working group was established to prepare its commentary, he encouraged the reading of the conclusions together with the commentaries. Noting that the Commission had identified two elements for the identification of customary law, general practice and opinio juris, he said this methodology is of great use to all legal practitioners. National judges often find themselves determining the existence of customary international law. Expressing support for the recommendations of the Commission on both topics, he welcomed the inclusion of general principles of law in its programme of work.
REUVEN EIDELMAN (Israel) said that “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” is an important area of the Commission’s work, as treaties are concluded for stability and clarity. It is important that States retain their discretion as to whether to accept a practice that would affect their obligations under a treaty, he said.
Turning to “Identification of customary international law”, he acknowledged the efforts invested in the subject by the Commission and expressed his appreciation for the dialogue between the Commission and Member States. Noting that his delegation values the consideration of comments provided by Member States, he recalled that Israel submitted extensive comments and observations to the Commission. The draft conclusions and commentary address important challenging topics. Among these issues he welcomed the Commission’s insistence for State practice to emerge, as the primacy of States is vital in the establishment of customary international law. The present project should reflect broad agreement between States so as to have acceptance of the draft agreements.
On “Universal criminal jurisdiction”, he said it should be addressed sensitively as it is often advanced to serve a political agenda or media attention rather than to promote the rule of law.
Regarding “Sea‑level rise in relation to international law”, he welcomed the Commission’s decision to include this subject in its long‑term programme of work. As noted in the report, it has become a significant matter that poses a concrete threat to low‑lying and coastal communities. He encouraged the examination of the legal aspects of sea rise, such as maritime zones and questions of statehood.
FRED SARUFA (Papua New Guinea), associating himself with the Pacific Island Forum, said that he was particularly pleased to see the topic “Sea‑level rise in relation to international law” placed on the Commission’s long‑term programme of work. This may be a new topic for the Commission, but it has been a serious concern for Papua New Guinea for a long time, especially in the context of climate change, sea‑level rise and maritime boundaries. He voiced his strong agreement with the Commission’s expert determination that this topic meets all of the criteria for selection as a new topic for the long‑term programme of work.
While the scope of work will be limited to the legal implications of sea‑level rise with respect to the Law of the Sea, statehood and the protection of persons affected by sea‑level rise, this is a monumental step in the right direction, he stressed. Only States can generate maritime zones and it is essential for island States to maintain statehood to preserve their maritime zones. Further, the statehood issue raises the potential issue of statelessness. The principle of prevention of statelessness in international law is a corollary to the right to a nationality.
OKSANA ZOLOTAROVA (Ukraine), speaking on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, welcomed the Commission’s adoption of the draft conclusions together with commentaries. On recommendations for the Commission’s long‑term programme of work, she took note of the suggestion to include the topics universal criminal jurisdiction and sea‑level rise in relation to international law.
Turning to “Protecting the environment in relation to armed conflicts”, she said “it is high time for the ILC to address these questions”, adding that recent developments show this issue requires immediate attention from the legal society. Giving an overview of events in her country, she said that experience confirmed that damage can be done when an occupying power fails to give proper weight to environmental considerations in its administration of an occupied territory. She welcomed the draft principles and their timely contribution to the progressive development of the law of belligerent occupation, particularly principle 21 in relation to the responsibility for environmental damage that can extend beyond the occupied territories. Among other examples, she also pointed to the illegal construction of a bridge across the Kerch Strait, which is a violation of the Convention on the Law of the Sea.
DOROS VENEZIS (Cyprus) said of “Identification of customary international law” that he took note of the adoption of 16 draft conclusions by the Commission. Regarding the inclusion of the concept of persistent objector in draft conclusion 15, he said that it did not fall within the mandate of the Special Rapporteur to identify customary international law. The mandate is not to identify any possible exception to the principle. In addition, the concept of persistent objector is not a question of identification of customary law but rather its application, he stressed. Further, while the Special Rapporteur had noted that the concept was widely welcomed by States, in fact it is not an accurate reflection of the views of States, he pointed out.
On the topic “Sea‑level rise in relation to international law”, he said he recognized the gravity of this issue for small island developing States and the entire international community. Combating climate change, including sea‑level rise, is of critical importance to Cyprus. He expressed concern with the methodology used in the subject as well as the lack of prior communication between the Commission and the Sixth Committee. The creation of the study group to revisit the issue of sea‑level rise is broad in scope and overlaps with pre‑existing work, including by the International Law Association.
MANUEL DE JESÚS PIREZ PÉREZ (Cuba) expressed concern over the excessive number of items in the Commission’s programme of work. Each topic requires time for experts to review in order to have better interaction between the Commission and the Sixth Committee. In addition, the report should be translated into the six official languages of the United Nations.
On new topics for the Commission’s programme of work, he said that “Universal criminal jurisdiction” fails to meet one of the criteria for inclusion; a new topic should be sufficiently advanced in terms of State practice. However, he welcomed “General principles of law”, as it constitutes one of the key elements for international law practitioners.
Addressing “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he stated that draft conclusion 2 does not provide any additional element to what is stipulated in articles 31 and 32 of the Vienna Convention. In draft conclusion 3, use of “authentic means” when referring to subsequent agreements and practices may create confusion relating to the authenticity of other means under article 31.
Turning to “Identification of customary international law”, he noted that State behaviour should only be limited to State practice as a subject of international law, not the practice of other non‑State actors. While draft conclusion 6 refers to inaction as evidence of State practice, it contains ambiguity in the formulation, and draft conclusion 8 is apparently contradictory, mandating constant practice without requiring a specific duration.
GENE WAQANIVALU BAI (Fiji), aligning himself with the Pacific Island Forum Group, said Pacific Island States are witnessing the impacts of sea‑level rise. Communities in his country are experiencing a decline of food production due to salt water intrusion that is resulting in increased salinity levels on agricultural land. He noted that one metre sea‑level rise could force about 60 million people in developing countries to abandon their homes, as waters submerge large swaths of coastal areas. His Government is initiating a National Planned Relocation Guideline, which attempts to define legal challenges that may arise during relocation of communities. Fiji is also concerned with the effects of sea‑level rise on international law, especially with respect to regulating maritime entitlements, delimitation of maritime zones and the right of a coastal State to an extended continental shelf.
PIERINA ALAFAMUA KATOANGA (Samoa), associating herself with the Pacific Islands Forum, said that she welcomes the inclusion of the topic of sea‑level rise in the Commission’s work programme, as this is an area that is of major concern to the Pacific region. For Samoa, sea‑level rise continues to affect coastal industries, livelihoods, infrastructure and ecosystems. Nearly 70 per cent of the population reside near the coast within erosion, flooding and landslide zones, making them particularly vulnerable to the effects of climate change. The use of tools such as satellite data has helped in predicting sea‑level changes up to nine months in advance. Acknowledging the validity of the legal questions raised by the Commission, she said she wished to place on record her country’s firm support of such legal implications, including the effect of sea‑level rise on Samoa’s baselines and maritime delineations, statehood issues and issues related to the protection of persons affected by sea‑level rise.
JONGIN BAE (Republic of Korea), commenting on the topic “Subsequent agreements and subsequent practice”, said that treaty interpretation must be distinguished from treaty amendment or modification. He emphasized that the intention of State parties is the most important part of treaty interpretation and that the conduct of international organizations and procurement of expert treaty bodies may not qualify as subsequent practice under certain articles of the Vienna Convention.
While draft conclusions on the topic “Identification of customary international law” properly reflect the current state of international law, he said he had concerns regarding draft conclusions 6 and 10. “It is only natural that the form of State parties listed in paragraph 2 of conclusion 6 and the evidence of acceptance as law listed in paragraph 2 of conclusion 10 overlap to a considerable degree,” he observed, calling for consistency in the use of terms to avoid any possible confusion.
He took note of the Commission’s introduction of the topic “General principles of law”. The topic is a source of international law. Clarifying its role and characteristics and providing concrete examples might be useful for academics and practitioners, he said.
Regarding “Sea‑level rise in relation to international law”, he said the topic reflects the current serious concerns of small island developing States. The topic also reflects new developments in international law and pressing concerns of the international community as a whole. Sea‑level rise is an intergenerational concern.
However, he noted some “mixed feelings” regarding the topic “Universal criminal jurisdiction”. On one hand, his Government has enacted legislation to implement the Rome Statute of the International Criminal Court and has adopted the principle in a limited sense. On the other hand, he was not sure that the topic was mature enough to converge on some meaningful conclusions, he said.
MARIE-CHAROLETTE MCKENNA (Australia), welcoming the draft conclusions on “Subsequent agreements and subsequent practice” and “Identification of customary international law”, said that the Commission’s work will be helpful guidance to States, courts and legal academics. Turning to the Commission’s other decisions, she welcomed the inclusion of “Universal criminal jurisdiction” and “Sea‑level rise in relation to international law” in its programme of work.
Regarding “Universal criminal jurisdiction”, she stressed that all States have a responsibility to ensure accountability for grave crimes such as torture, crimes against humanity, slavery and piracy. Where impunity prevails, history shows that lasting peace is difficult to achieve. As a well‑established principle of international law, universal jurisdiction provides a legal basis for punishing such crimes and it would benefit from the Commission’s attention.
Turning to the topic of sea‑level rise, she applauded small island developing States in the Pacific for bringing this topic and surrounding complex legal issues to global attention and encouraged the Commission to consider the issue expeditiously.