International Court of Justice Adapts to Evolving Law through Creativity, Rigour, Its President Tells Sixth Committee during Annual Visit
Delegates Debate Cluster II Topics as International Law Commission Annual Report Review Continues
In response to the evolution of international law and the expansion of international society, the International Court of Justice has creatively employed the primary sources of law applicable in cases before the Court — international customary law and general principles of law — the Court’s President told delegates today during his annual address to the Sixth Committee.
Justice Abdulqawi Ahmed Yusuf observed that these sources are often unwritten, unless clearly identified or codified in a specific document. The Court previously emphasized repeated usage over a long period of time to determine the existence of an international custom. This older approach was primarily based on the realities of an era in which multilateralism was in its infancy, international organizations were not afforded legal personhood and geographic distance impeded the accessibility of information on State practice.
However, he pointed out, as time and space shrank in the wake of technological development, the Court rejected the primacy previously given to repeated usage and, instead, emphasized the importance of opinio juris; that is, the legal conviction that the act concerned is prompted by a sense of legal duty. State practice has become more readily accessible and the development of customary international law is no longer a slow process.
Two words seem to best define the Court’s engagement with these so-called unwritten sources of law: creativity and rigour, he said. The Court has adapted and updated the sources of international law it is statutorily tasked to apply to reflect the evolution of international law and life. Despite widespread appreciation of its work, however, the Court does not enjoy universal acceptance. On this, he expressed hope that more States will consider accepting the Court’s jurisdiction.
The Sixth Committee today also continued its consideration of the second cluster of topics from the report of the International Law Commission, with delegates addressing “Protection of the environment in relation to armed conflicts”, “Immunity of State officials from foreign criminal jurisdiction” and “Sea-level rise in international law.” (For background, see Press Release GA/L/3608.)
The representative of Argentina, speaking on “Immunity of State officials from foreign criminal jurisdiction”, noted that the procedure to invoke such immunity varies among States. The draft articles, therefore, should establish a common framework that States can use when adopting domestic laws on immunity. While the proposed articles balance the guarantees offered to the forum State and the State of the official, he encouraged a more flexible approach for the latter’s invocation of immunity in accordance with State practice.
Also championing State practice was Slovakia’s delegate, who said the draft articles should focus thereon to achieve a useful and meaningful set of articles on the procedural aspects of immunity. He further expressed concern that the annexed list to article 7 of exceptions to immunity ratione materiae includes crimes not firmly part of international law.
Iran’s representative took similar issue with this list, expressing disappointment with the way in which article 7 was drafted and adopted; it does not benefit from sufficient and representative State practice in its current form. He also highlighted the draft principles on “Protection of the environment in relation to armed conflict”, stressing that those texts should be limited to international armed conflicts; applying them to non-international armed conflicts makes describing the obligations of non-State actors difficult.
The delegate of El Salvador also highlighted the draft texts on “Protection of the environment in relation to armed conflicts”, specifically draft principle 9 on responsibility of States. It is crucial to take a contemporary approach with determining such liability, she said, noting that environmental damage is not exclusive and non-prohibited activities may generate damage to third parties.
As well, the Federated States of Micronesia’s delegate embraced the Commission’s work on that topic, pointing out that his country has long been a theatre in which foreign powers waged armed conflict, the negative effects thereof persisting long after hostilities ceased. The Commission’s work underscores belligerents’ obligations to prevent or remediate these harmful effects. The topic, “Sea-level rise in relation to international law”, was also of concern to him, and he called on all States to submit information relating to the delineation of maritime zones and baselines, as the identification of State practice and corresponding opinio juris are key to the Commission’s work on this issue.
The representative of the Netherlands, also highlighting “Sea-level rise in relation to international law”, committed to sharing his country’s age-old experience of struggle with water in this era of sea-level rise. Further research on adjacent issues such as Statehood, the Law of the Sea and the protection of persons is required, as the 1982 United Nations Convention on the Law of the Sea may not be equipped to deal with these important problems. “The sea gives, and the sea takes,” he observed, quoting a famous Dutch play.
Also speaking today were representatives of Romania, Belarus, Italy, France, Greece, Singapore, Czech Republic, Uzbekistan, Israel, Poland, India, Ireland, Sudan, Sierra Leone, Spain, Brazil, Australia, Thailand, Portugal, Mexico, Cuba, Slovenia and Turkey.
The Sixth Committee will next meet at 10 a.m. on Tuesday, 5 November, to continue its consideration of topics in the second cluster of the report of the International Law Commission.
International Court of Justice
MICHAL MLYNÁR (Slovakia), Chair of the Sixth Committee (Legal), welcomed Abdulqawi Ahmed Yusuf, President of the International Court of Justice, calling attention to the well‑established tradition that, whenever the General Assembly considers the Court’s report, the President pays a visit to the Legal Committee. The activities of the Court are essential to the fulfilment of the Organization’s goal of bringing about by peaceful means, adjustment or settlement of international disputes or situations, he stressed.
ABDULQAWI AHMED YUSUF, President of the International Court of Justice, noted that since his last address to the Committee, the Court has delivered two judgements: one order on a request for the indication of provisional measures and one advisory opinion. The 16 cases now pending before the Court involve 26 countries from all the regions of the world, including five European countries, six African countries, nine Latin and North American countries, as well as six Asian countries. Article 38 of the Statute of the Court lists “international conventions”, “international custom as evidence of a general practice accepted as law” and “the general principles of law recognized by civilized nations” as the primary sources of law applicable in cases before the Court. Customary international law and general principles of law are, however, often unwritten, unless they are clearly identified or codified in a specific instrument.
The Court’s approach to the determination of what constitutes customary international law has changed over the years as a result of the evolution of international law and the expanded composition of international society, he continued. The old approach emphasized repeated usage over a long period of time in determining the existence of an international custom. An example could be found in the 1960 Right of Passage over Indian Territory case where the Court held that a bilateral customary international law right of passage existed between India and Portugal for private persons, civil officials and goods. This older approach to customary international law was primarily based on the realities of international society through the nineteenth century, when multilateralism was still in its infancy, when the legal personality of international organizations was yet to be recognized and when distance was an obstacle to the accessibility of information on State practice.
However, he went on to say, in the North Sea Continental Shelf cases, between Denmark and the Federal Republic of Germany, the Court rejected the strong emphasis on repeated usages and emphasized the importance of opinio juris, that is, the legal conviction that the act concerned is prompted by a sense of legal duty. The Court also clarified that State practice is not only composed of the usages of States but may also include the rules established in multilateral conventions. With the technological developments of the last century, both time and space have shrunk, he said. State practice, once difficult to bring to the attention of a wider audience, has become more readily accessible.
Thus, the development of customary international law is no longer necessarily a slow process, he observed, noting that the Court went on to apply this understanding in its most recent advisory opinion on the Legal Consequences of the Separation of the Chagos Archipelagio from Mauritius in 1965. Resolution 1514 (XV) represented a defining moment in the consolidation of State practice on decolonization, in so far as it clarified the content and scope of the right to self-determination. Therefore, the Court found that the resolution had a declaratory character with regard to the right to self‑determination as a customary norm.
Turning to general principles of law, he said that “here also, the Court has shown legal creativity”. Recalling article 38 of the Court’s Statute, which enables it to apply “general principles of law recognized by civilized nations”, he pointed to the negative historical connotations associated with the phrase, “civilized nations”. Noting that the Court has invoked and applied general principles of a legal character in a manner which has enriched the international law system, he said there are three types of general principles identified by the Court. The first type of principle is inherent to any legal system and therefore to be found in the international legal system. The second type derives from existing rules of international law and the third type is often said to be derived from domestic legal systems.
The Court tends to use general principles primarily to create coherence in the international legal system, he remarked. However, he also noted that “the question of coherence in international law is an existential one”. Two words seem to best define the Court’s engagement with so‑called unwritten sources of international law: creativity and rigour. The Court has shown extreme creativity by adapting and updating the sources of international law described in article 38 of the Statute to reflect the evolution of international law and the realities of international life. Unfortunately, the widespread appreciation for the work of the Court has not fully translated into a universal acceptance of it, he said, voicing the hope that more States will consider accepting its jurisdiction.
The floor then opened to an interactive dialogue between the Justice and delegations.
The representative of Germany remarked that it is natural for the Court to give an advantage to written sources of international law — namely, treaties and conventions — over unwritten sources in deciding cases. The Court must exercise rigor when identifying rules of customary international law, he said, questioning what an alternative for the term “civilized nations” in article 38 of the Statute of the International Court of Justice should be.
The representative of Armenia, noting that the Court recently adopted modifications to its rules, observed that the reformed article 79 provides a new structure for preliminary questions and preliminary objections. While he appreciated the Court’s initiative in conducting its review, he asked whether the Court envisages a new structure that would bifurcate proceedings, following the first case-management conference as a general practice, rather than waiting for respondents to raise preliminary objections.
The representative of Norway said that norms of customary international law that apply to a limited number of States are regional or bilateral in nature and asked to what extent the Court considers such norms of limited application linking relevant parties by something other than geographic location.
The representative of Togo, pointing to the tendency of courts to afford greater importance to written sources of international law, asked whether unwritten rules of international law have a promising future.
The representative of Kenya asked to what extent the President has seen the Court consider prevailing circumstances in its deliberations.
Mr. YUSUF, responding to the representative of Armenia, said that the restructuring of article 79 was intended to clarify past confusion regarding preliminary questions and objections; it is not a matter of the Court awaiting preliminary objections. Rather, it is the Court first determining jurisdiction in the presence of preliminary questions and then proceeding accordingly.
To the question by the representative of Norway, he answered in the affirmative, referencing Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) (2009).
Regarding the inquiry posed by the representative of Togo, he also answered in the affirmative, but noted that the future of unwritten rules of international law depend on State action; the Court will observe how practice evolves in drafted conventions.
To the delegate of Kenya’s question, he said the Court’s consideration of prevailing circumstances is case-specific and depends on the circumstances involved; the Court cannot take prevailing circumstances into account in the abstract.
Statements on Cluster II
ALINA OROSAN (Romania), commenting on “Protection of the environment in relation to armed conflicts”, said that while she agreed with the general, time-based structure, a better systemization of the principles is still necessary. In addition, noting that the complexity of non-State actors can raise many hurdles, it was important to establish systematic rules. This area of law is still growing, and depending on its evolution, the International Law Commission’s work could return to it.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, she urged the Commission to carefully consider proposals aimed at preventing the potential abuse of the transfer of proceedings to the State of the official, such as placing conditions that the State of the official is genuinely able and willing to exercise jurisdiction. Giving detailed thoughts on draft articles 8,9,10,11, 15 and 16, she added that the Special Rapporteur’s aim to provide a brief analysis on the relationship of this topic with international criminal jurisdiction, is needed. The issue should be seen in a broader context, including international judicial cooperation and assistance mechanisms. However, whilst doing so, it was important to keep in mind the agreed scope of the exercise which is limited to immunity from criminal jurisdiction of a State official.
On “Sea-level rise in relation to international law”, she noted that the principle, “Land dominates the sea”, although long-standing in international law, is not so straightforward. “We are finding now that the sea calls into the question this domination,” she observed. It was crucial to assess the effects that a shift landward of the coastline caused by increasing sea level might have on maritime zones, particularly with States that have not yet delimited their maritime spaces. Her Government will be providing examples of State practice to the Commission by the requested deadline.
RUSLAN VARANKOV (Belarus), noting that his delegation would be sending additional detailed comments on “Protection of the environment in relation to armed conflicts”, said that, in regards to draft principles 10 and 11 on corporate diligence and liability, he had some doubts about the practical possibility of assigning responsibility to corporations. While this problem is extremely relevant, the norms and principles regulating such activities usually take place in peacetime. Further, draft principle 14 on application of the law of armed conflict to the natural environment is somewhat vague, he said.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he reaffirmed his delegation’s earlier expressed position. While progressive development is a prerogative of the Commission, the final results of its work should take into account the views of States. Noting the lack of procedural guarantees to draft article 7, concerning crimes under international law in respect of which immunity ratione materiae shall not apply, he said it should be taken out of the draft. He also called for a balance between rights and obligations, highlighting draft principle 10 on invocation of immunity.
Regarding “Sea-level rise in relation to international law”, he said that while the topic merits seriousness, it is not in the interests of the entire international community.
ANDREA TIRITICCO (Italy), commenting on “Protection of the environment in relation to armed conflicts”, said the impact of armed conflict on the applicability of international environmental agreements should be further studied and reflected in the draft principles. The current work leans towards the application of lex specialis principle on the relationship between the law of armed conflicts and international environmental law. Clarifications would be warranted for long-term occupations. She endorsed the insertion of principle 9 on State responsibility for environmental harm during armed conflicts, including the possibility of envisaging compensation for “purely” environmental damage that cannot be financial assessed. She also noted the connection between the law of occupation and other branches of international law, especially the law on self-determination, where applicable.
Turning to “Immunity of State officials from foreign criminal jurisdiction” and the issue of invocation, she highlighted the Special Rapporteur’s distinction between immunity ratione materiae, conditional upon the invocation by the State of the official and ratione personae, to be applied by the relevant authorities ex officio, as reflected in the proposed draft article 10. She noted her concern with the proposed wording of draft article 14, paragraph 1, which introduces a discretionary element. This runs counter to the precept of the rules on immunity of State officials which, when applicable, create an obligation to abstain from exercising jurisdiction. In addition, she reiterated her strong support for the current drafting of article 7.
Regarding “Sea-level rise on international law”, she referred to the legal baselines for measuring the breadth of the territorial sea. A primary problem is whether the baselines should move with the rise of sea levels. The 1982 United Nations Convention on the Law of the Sea does provide rules on changes to legal baselines if they move seaward, but not landward. Another issue is how sea-level rise will impact the recognition of the status of an island as a “naturally formed area of land, surrounded by water, which is above water at high tide”, according to Article 121, paragraph 1 of the Convention. A related aspect is the legal status of artificial substitutes of disappearing islands. No less important is the study group’s focus on the displacement/replacement of insular people and their status. Under the 1951 Convention Relating to the Status of Refugees, people displaced because of climate change are not accorded this status.
METOD ŠPAČEK (Slovakia), addressing “Protection of the environment in relation to armed conflicts”, observed that armed conflicts often cause significant harm to natural resources and the environment. While the topic was relevant for consideration by the Commission, he said he was hesitant with the provisional result of the 28 draft principles on the subject. A more streamlined and concise set of principles, with clear normative content, would be more useful for State practice. Pointing out that the draft principles consist of a blend of international environmental law, restatements of international humanitarian law and recommendations de lege ferenda, he said that they lack overall normative coherence.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said the draft articles on the subject should focus more on existing State practice to achieve a useful and meaningful set of articles on the procedural aspects of immunity. As this practice varies in domestic law, the articles must not be overly prescriptive. However, he said he supported for inclusion of procedural aspects and safeguards as they contribute to the prevention of politically motivated or abusive exercise of jurisdiction against foreign State officials. Regarding exceptions to immunity ratione materiae as stated in article 7, he expressed concern that the annexed list to that article includes crimes that are not firmly part of general international law.
Acknowledging the urgent questions connected with “Sea-level rise in relation to international law”, he said those issues were better addressed in other multilateral fora, including the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea. Nonetheless, he looked forward to the results of the Commission’s study group on this topic, he said, adding that the most appropriate final form of the Commission’s consideration of the subject should be an analytical study. Any such outcome must reaffirm the unified character of the Convention on the Law of the Sea.
FRANÇOIS ALABRUNE (France) commended the 28 draft principles on “Protection of the environment in relation to armed conflicts” and the commentary thereto. He said that France will provide the Commission with its comments and observations thereon by 1 December 2020.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said that the exceptions to immunity ratione materiae provided by draft article 7 do not constitute rules of customary international law and lack sufficient State practice and opinio juris. He also said he supported the Special Rapporteur’s choice of not dealing with the relationship between this topic and international criminal jurisdiction. Debate remains open on this issue and study thereof goes beyond the scope of the draft articles. Looking towards the final form of the Commission’s work, he noted his support for a draft convention as was the case with its related work on immunities.
On “Sea-level rise in relation to international law”, he remarked that the Commission’s work methods on this topic seem to stray from normal procedure. It is important that debates take place in public at a plenary meeting and that any draft text adopted be transmitted to the Sixth Committee. The Commission’s creation of an open-ended study group runs the risk of harming transparency. This topic is important to States — especially island States — and is a new subject, at an early stage of consideration, for which opinio juris is not yet established. Consideration must consequently fully involve the Committee. However, if a study group is established, it must publish its work regularly so States can react every year, he said.
MARIA TELALIAN (Greece), on “Protection of the environment in relation to armed conflicts”, offered detailed comments on the draft texts, noting that the commentary to article 13 should inform about the extent to which general principles of environmental law operate in wartime as well as how they interact with the jus in bello rules. Moreover, the commentary to article 14 should establish a link between the rule concerning precautions during attack to avoid or minimize collateral environmental damage. The commentary of draft principle 21 should also include a reference that States should abstain from recognizing situations of illegal occupation and engaging in economic or other forms of relationship with the occupying Power. On draft principle 26, it should make clear that if the State liable is unwilling to provide compensation, it is not relieved from its secondary obligations under law of State responsibility.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, she said the debate within the Commission has once again demonstrated the complexity and difficulties inherent to the relevant issues, especially given the scarcity of international and national case law and practice. It also indicates that the divergence of views regarding the content in draft article 7 may significantly affect and delay progress on the topic. As such, she highlighted the importance of clarifying procedural aspects of immunity and elaborating relevant rules and safeguards. While acknowledging the difficulties involved, she expressed regret that the Commission has not provisionally adopted any draft article for the second year in a row.
In regard to “Sea-level rise in relation to international law”, she said that scientific research and academic consideration of the topic should be further promoted so the international community can fully grasp its implications. However, the matter does not lend itself for codification at this stage. There is a lack of State practice in addressing legal issues in this area. Therefore, the ensuing lack of generally accepted rules does not provide solid ground for the endeavour. Annex B, paragraph 15 of the 2018 report confirmed this concern, she observed. Taking note of the assurance provided in that report’s paragraph 14 — that the Commission will not propose modifications to existing international laws such as the Convention on the Law of the Sea — she expressed hope that the Commission will avoid fragmenting, undermining or derogating from the provisions of this fundamental pillar of the international legal order.
CHUNG YOON JOO (Singapore), commenting on “Protection of the environment in relation to armed conflicts”, thanked the Commission for citing N.V. De Bataafsche Petroleum Maatschappij & Ors. v. The War Damage Commission (1956) (the Singapore Oil Stocks case) and called on the Commission to continue its efforts to ensure that its output represents the different legal cultures and geographic regions of the United Nations.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, she underscored the necessity of safeguards to ensure that exceptions to immunity ratione materiae are not applied in a wholly subjective manner. In this regard, she agreed with members of the Commission who considered that full discussion of procedural issues was important to ensure that immunities, where applicable, were respected in order to safeguard the stability of international relations and to ensure respect for State sovereign equality. While clarity in this area of law would be helpful, a margin of appreciation and flexibility must be accorded to States to address matters pertaining to immunity of State officials. Mechanisms allowing for consultations between the State of the official and the forum State would be useful, she added.
On “Sea‑level rise in relation to international law”, she stressed that, as a small, low‑lying island State, Singapore is particularly vulnerable to the threat of rising sea levels; for her country, this is an existential issue. It is ultimately a challenge of the global commons that requires a multilateral approach. Noting the Commission’s decision to establish a study group on this topic open to all its members, she called for the group’s composition to represent different geographic regions and to take into account the diverse interests of States, including those particularly vulnerable to rising sea levels.
Ms. PELKIO (Czech Republic), commenting on “Protection of the environment in relation to armed conflicts”, observed that armed conflicts always have negative impact on the environment, not only in places where they take place, but also in other areas. Pointing to the issue of enforcing the basic principles of international humanitarian law, especially by non‑State actors, she underscored that the legal obligations concerning protection of the environment in relation to armed conflicts cannot be interpreted in isolation from other rules applicable in armed conflicts.
She turned to “Immunity of State officials from foreign criminal jurisdiction”, underlining that the Commission’s debates on the procedural aspects should be more focused on the application of these procedural aspects in judicial decisions and practice of national authorities in concrete cases involving immunity ratione materiae and ratione personae. The Commission should not formulate additional procedural obligations, she said, opposing the suggestion to include in the draft articles a mechanism for the settlement of disputes between the forum State and the State of the official. However, the invocation of immunity ratione materiae may have consequences not only for the concrete criminal proceedings, but also for the international responsibility of the State invoking such immunity if the crime was committed on the territory of the forum State. More attention should be given to the application of immunity ratione materiae in relation to the treaties which provide for the exercise of extraterritorial criminal jurisdiction over crimes committed in an official capacity.
Calling the topic “Sea‑level rise in relation to international law” scientific and technical, she stressed it should be considered by competent expert bodies and intergovernmental fora having a mandate to deal with the Law of the Sea issues. More so, he noted that the membership of the open‑ended study group was described as possibly changing from year to year. There should be a firm commitment to work and a sense of responsibility for outcomes, she said, adding that changing membership might not guarantee the most efficient use of resources.
FARKHOD AZIMOV (Uzbekistan), on “Immunity of State officials from foreign criminal jurisdiction”, said all States have the same rights and obligations regardless of their economic, social and political differences. Calling for careful consideration of this sensitive topic, he said the draft articles should take into account the overall practices of States. Immunity of officials from foreign criminal jurisdiction is normative international law, he stressed, expressing concern over some of the provisions in the draft articles. Noting that the exemption of immunity of officials from foreign jurisdiction in its current form does not reflect any real trends in the overall practice of States, he said that this “invalid rejection” seriously undermines international law and order and can become an instrument for politically motivated legal procedures.
On “General principles of law”, he noted the preliminary report and called for a balanced approach. The Commission should be more cautious, he said, adding that Member States expected it to provide practical and concrete conclusions, based first and foremost on analysis of international legal systems.
RÉNÉ LEFEBER (Netherlands), commenting on “Other Decisions”, said the draft articles on “Provisional application of treaties” do not cover the issue of the settlement of disputes of a private law character to which international organizations are a party, adding that “how and on the basis of which standards international organizations settle such disputes is increasingly raising difficult questions”. Therefore, his country reiterates its appeal to the ILC to place on its agenda the topic of the settlement of disputes of a private law character to which international organizations are parties.
Turning to the topic of “Protection of the environment in relation to armed conflicts”, he welcomed the questions addressed in connection with non-international armed conflict in the Second Report, as well as the Special Rapporteur’s approach ratione materiae with a reference to “armed conflict” that does not make the distinction between its international or non-international character. He also said he appreciated the effort to clarify in the commentary which part of the principles are considered to be a reflection of customary international law, achieved through the use of the word “shall”. However, he called for further clarification with respect to the choice of the general reference to “armed conflict” and the fact that the principles are not only supposed to reflect customary international law.
On “Immunity of State officials from foreign criminal jurisdiction”, echoing other delegations, said he was concerned that that the proposed draft articles now referred to the drafting committee are not sufficiently based on extensive and virtually uniform State practice and opinio juris. The discussions in the Committee at present demonstrate an absence of consensus on the way forward. The development of procedural safeguards has not assisted in resolving the difference of opinion. In addition, the relevance to the law of immunities of many proposed draft articles and their level of detail is not obvious. The proposed procedural safeguards do not contribute to the rules defining whether immunity exists and what the consequences are for the absence or presence of immunity. Moreover, he noted his regret that the Commission included a list of crimes for the purpose of defining exceptions to immunity. He urged the Commission to reconsider the topic and find consensus on fundamental notions on which such immunity is based before developing or adopting any draft articles.
Turning to the topic of “Sea-level rise in relation to international law”, he said he supported the inclusion of the topic in the programme of work. However, it raises complex questions that touch on issues such as Statehood, Law of the Sea and the protection of persons. Further research is required, as the Convention on the Law of the Sea may not be equipped to deal with these important problems. “The sea gives, and the sea takes,” he observed, quoting the lead character in a famous Dutch play. For its part, the Netherlands will continue to share its age-old experiences of struggle with water in this era of sea-level rise, he said.
SARAH GOLDIE WEISS (Israel), speaking on “Immunity of State officials from foreign criminal jurisdiction”, expressed concern that certain draft articles provisionally adopted by the Commission have failed to reflect customary international law. In particular, she highlighted the unsatisfactory treatment of the issue of immunity ratione personae in draft article 3 and the exceptions to immunity ratione materiae in draft article 7. Discouraging the Commission from proceeding with a discussion of exceptions to immunity, she said: “Should it nonetheless decide to do so, it would merely be an attempt to propose lex ferenda.” Turning to procedural safeguards, she added that immunity is a procedural threshold that ought to prevent any criminal proceedings from being initiated. At this juncture, deliberations on the final outcome of the work of this topic are highly premature, she said, stressing that it is not feasible to envisage the adoption of the current drafts as a convention.
MICHAŁ KOWALSKI (Poland), said that, regarding “Protection of the environment in relation to armed conflicts” and the provisional adoption of draft principles, that his country would strive to transmit more detailed comments on the entire set of the draft principles in the future.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he offered preliminary observations on article 8 ante, provisionally adopted by the Drafting Committee, as well as draft articles 8 to 16, proposed by the Special Rapporteur. Some more consistency is warranted concerning the identification of the entity responsible for the determination of the immunity. Further, appropriate State authorities should proprio motu decide on the application of immunity in respect of all State officials who enjoy it, without any distinction. He also called for the insertion of a “reasonable period of time” clause in draft article 14, paragraph 2; the suspension of the criminal proceeding in the forum State can be indefinite where there is no decision of the State of the official.
On “Sea-level rise in relation to international law”, he commented that — contrary to other topics on the Commission’s agenda — it has not been accompanied by a considerable amount of practice of States, yet neither is there significant treaty-body practice. “Therefore, in our view, the Commission has to be particularly careful in formulating its views,” he said.
UMA SEKHAR (India), on “Immunity of State officials from foreign criminal jurisdiction”, said the question of whether such immunity should prevail over the duty to prosecute and punish individuals responsible for crimes has resurfaced in the light of the new developments in international law. International and national courts which have prosecuted State officials have faced challenges in a number of areas including jurisdictional matters and enforcement of warrants of arrest, she noted. Acknowledging the proposal that there should be certain procedural safeguards, she said that “the ones detailed under draft articles 8 to 16 may be useful to both the forum State and the State of the official”.
Turning to “Sea-level rise in relation to international law”, she affirmed that sea-level rise is one of the consequences of global warming. Its effects can be manifold and can cause the submersion of existing land territories, thereby raising complex issues of sovereignty and access to natural resources. Sea-level rise is also expected to change the existing boundaries of maritime zones, she said, calling on the Commission to address the issue of livelihoods and displacement which will affect millions of people in the coastal areas.
She then took up “Protection of the environment in relation to armed conflicts” and the 28 draft principles on that topic, noting that several international instruments refer to this topic. That includes the Hague Convention of 1907, the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War and the Additional Protocols to the Geneva Conventions. The draft principles should not be in conflict with obligations arising from existing conventions. Any work on this topic should not duplicate the efforts already undertaken, she said.
MARIO OYARZABAL (Argentina), commenting on “Protection of the environment in relation to armed conflicts”, said that the subject of environmental issues in non-international armed conflict — particularly the responsibility of States for environmental harm — are important topics for protecting the environment during and after conflict. However, the matter of the complementarity of the law of occupation and other international law cautions prudence. He called for this issue to be studied in greater depth, particularly the subject of State civil responsibility.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he called on the Commission to address the formal and procedural aspects of the system of jurisdictional immunity. The procedure for invoking this immunity varies from one country to another; the draft articles should provide procedural rules and establish a common framework States can use when adopting domestic law on immunity. The proposed articles reflect a balance between guarantees offered to the forum State and the State of the official. However, a more flexible approach for invocation of immunity by the latter was needed, as State practice confirms this trend and a procedural system that limits the discretion of the State of the official might limit the right to immunity.
On “Sea-level rise in relation to international law”, he expressed concern at the negative implications of sea-level rise on coastal States, particularly developing countries. It is timely to identify sub-topics on matters relating to the Law of the Sea, Statehood and persons affected by sea-level rise. He also called for study of the continuity of legal personality of a State that is totally flooded and on the humanitarian consequences this situation would have on the population thereof.
Regarding “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law”, he said that study of the secondary rules of international law relative to the international responsibility of States in this regard can contribute to the codification and progressive development of international law in this area. He called for the results of this work to lead to a draft handbook or principles to identify current standards and propose best practices relating to this topic.
JAMES KINGSTON (Ireland), commenting on “Immunity of State officials from foreign criminal jurisdiction”, said that a reordering of the draft articles by the Special Rapporteur would result in a clearer picture of the different procedural stages to be dealt with, also stressing the importance of maintaining consistency of terminology. He welcomed the recognition of the need for safeguards to prevent political or abusive use of criminal jurisdiction against foreign State officials and the analysis of this issue in the Special Rapporteur’s sixth and seventh reports. He also said he looked forward to further discussions in the Commission next year of the link between these safeguards and draft article 7, along with possible proposals for the inclusion of additional safeguards specifically linked to that article. Regarding the proposed completion of the first reading of the draft articles during next year’s session, adequate time must be allocated to complete full consideration of all its aspects by both the Commission and the Sixth Committee.
Turning to “Sea-level rise in relation to international law”, he welcomed the inclusion of this topic in the Commission’s long-term programme of work, also expressing support for the proposed establishment of an open-ended study group that will focus on three subtopics, namely issues related to the Law of the Sea, Statehood and the protection of persons affected by sea-level rise.
ABBAS BAGHERPOUR ARDEKANI (Iran), on “Protection of the environment in relation to armed conflicts”, said the present draft principles should be limited to international armed conflicts. Their application to non-international armed conflicts brings about some difficulties in the description of obligations of non-State actors and the threshold of non-international armed conflicts. Further, it should be noted that the acts of non-State actors or insurgents in a non-international armed conflict that causes damage to the environment entail the individual criminal responsibility of that non-State actor or insurgent under the national legal system.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he expressed disappointment with the manner in which draft article 7 has been provisionally drafted. The adoption of that article by vote in the Commission is a matter of concern, as well. That may not only have adverse impact on the working methods of the Commission, but also may indicates that there has been a fundamental division of opinion on certain issues among members, raising the difficulty of concluding whether draft article 7 reflects lex lata. The Special Rapporteur has stepped into the path of progressive development by proposing this article which does not benefit from sufficient and representative State practice. Further noting that immunity of officials is distinct from immunity of States, he added that a discussion on procedural issues is also essential in order to safeguard the stability of international relations as well as respect for the sovereign equality of States.
OMER MOHAMED AHMED SIDDIG (Sudan) observed that the topic “Immunity of State officials from foreign criminal jurisdiction” raises key questions relating to two important principles of international law: State sovereignty and combating impunity. This type of immunity for State officials is widely recognized by the international community and is procedural in nature; it should not be considered a gap in measures to fight impunity. Further, the draft articles do not prejudice any other form of immunity — such as diplomatic immunity — as, in case of conflict between the articles and a special regime, the latter prevails; a person subject to such rules is excluded from the purview of the draft articles. He also detailed concerns with article 6 regarding the immunity of Heads of State; the treatment of States not party to the Rome Statute by those States that are; considerations for the forum State; and future consideration of the relationship between the immunity of State officials and international criminal courts.
Turning to “Protection of the environment in relation to armed conflicts”, he reiterated the importance of State sovereignty over natural resources and the principle that nations may freely dispose of their wealth and natural resources. He called for clarity regarding the Commission’s use of the terms “environment” and “natural environment”, noting that issues involving the former are not limited to the latter. The Commission should reconsider its usage of these terms. He expressed support, however, for principle 3 that prohibits the pillage of natural resources and principle 6 that requires corporations to exercise due diligence to protect human and environmental health when operating in conflict areas.
MICHAEL IMRAN KANU (Sierra Leone), on “Protection of the environment in relation to armed conflicts”, said the draft principles on that topic contain provisions of different normative value. Some reflect customary international law while others are non-binding recommendations. Commending draft principle 8 which addresses human displacement, he highlighted the recommendation calling on States, international organizations and other relevant actors to take appropriate measures to prevent and mitigate environmental degradation in areas where persons displaced by armed conflict are located, while providing relief and assistance for such persons and local communities.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said the topic is sometimes sensitive, both within the Commission and among the States. He called on the Commission to strike a balance between the imperatives of sovereignty and the contemporary demands for accountability, especially in relation to the most serious crimes of concern to the international community. Expressing his support for the adoption of the draft articles concerning immunities ratione personae and immunities rationae materiae, he underscored the potential for abuse of draft article 7.
On “Sea-level rise in relation to international law”, he recalled the alarming reports of the Intergovernmental Panel on Climate Change on the vulnerabilities of the planet and the disproportionate impact anticipated in relation to small island developing States and coastal States, including his. The Commission should address core legal aspects stemming from sea-level rise. However, the nature of the topic might pose a methodological challenge; State practice in this area may be lacking or not even desirable. He also stressed the need to complement existing regimes, whether in relation to human rights and migration or Statehood.
CARLOS JIMENEZ PIERNAS (Spain), commenting on “Immunity of State officials from foreign criminal jurisdiction”, said he supported the creation of a system of limits and exceptions to immunity rationae materiae. It should not be possible for officials of a foreign State whose term has ended to allege immunity rationae materiae with regards to crimes under international law as serious as those included in draft article 7, including genocide, crimes against humanity, war crimes, apartheid, torture and forced disappearances. He said he agreed with article 10.6, through which the courts must recognize proprio motu the inviolability of current heads of State, Heads of Government, Ministers for Foreign Affairs and diplomatic and consular agents accredited before a receiving State. He also said he was in favor of having the drafts articles, approved on second reading, include a dispute resolution mechanism with regard to the interpretation and application of their provisions. This mechanism should be based on an obligatory appeal to the International Court of Justice or to international arbitration if the dispute is not resolved through negotiation or any other means.
GEORGE RODRIGO BANDEIRA GALINDO (Brazil), on “Protection of the environment in relation to armed conflicts” said the Commission should not seek to change the existing set of norms in international humanitarian law, but rather fill its gaps as they relate to environmental protection. The current exercise should not seek to change environmental law or attempt to create new norms, he said, highlighting the necessity to have clarity on normative value of individual draft principles, since many of them seem to have a more recommendatory nature. In particular, the word choice should follow the non-binding nature of the text.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said that Brazil has been following with attention the work of the Commission on the matter. He looked forward to the completion of its work on this topic, with due attention to the comments and suggestions presented by Member States.
On “Sea level rise in relation to international law”, he noted the decision to establish an open-ended study group on the topic. Throughout its planned sessions for the next two years, the study group will have the opportunity to gather significant elements in order to address this pressing legal need of the international community, he said.
Ms. NORRIS (Australia), commenting on “Protection of the environment in relation to armed conflicts”, called for clarity regarding which draft principles reflect existing international law and which are intended as recommendations to enhance the protection of the environment beyond what is required as a matter of legal obligation. Further, the Commission should account for substantive differences in obligations depending on the international or non-international nature of a conflict. She also commended the Special Rapporteur’s appreciation of the intricacies associated with questions of allocation of responsibility.
Turning to “Immunity of State officials from foreign criminal jurisdiction,” she stated that the draft texts should primarily focus on codifying customary international law and should therefore be distilled from relevant State practice and opinio juris. If the Commission elects to advance a proposal that does not reflect existing law, this should be clearly identified. Noting the prescriptive nature of draft articles 8 to 16, she called on the Commission to further consider how these texts account for the difference between immunity ratione personae and immunity ratione materiae. She also observed that the exception to the immunity of foreign State officials from foreign criminal jurisdiction in article 7 does not reflect any real trend in State practice or existing customary law.
On “Sea-level rise in relation to international law,” she pointed out that small-island States in the Pacific are particularly vulnerable to sea-level rise and said that the Law of the Sea Convention provides the basis for stability and good governance of the oceans. Commending the Commission’s approach of drawing from current State practice concerning the identification of basepoints and definition of maritime zones to inform its recommendations on this topic, she encouraged States to publicize geographical coordinates and to deposit their charts with the Secretary-General.
CLEMENT YOW MULALAP (Federated States of Micronesia), aligning himself with the Pacific Islands Forum and the Pacific small island developing States, commented on “Sea-level rise in relation to international law”. Pacific leaders have committed to work together to ensure that once a Pacific country’s maritime zones are delineated in accordance with the Convention on the Law of the Sea, those zones cannot be challenged or reduced as a result of sea-level rise and climate change. His country recently submitted to the Secretary-General charts and lists of geographic coordinates for all its maritime zones and baselines, along with its maritime delineation treaties. He encouraged other States to do the same, as the development and identification of relevant State practice and corresponding opinio juris are key to the Commission’s work on sea-level rise.
Turning to “Protection of the environment in relation to armed conflicts”, he pointed out that her country has long been the theatre of armed conflicts waged by foreign powers. The effects of such conflicts on the natural environment of the Federated States of Micronesia have been extensive, with some persisting long after the cessation of hostilities. The Commission’s work underscores the obligation of belligerents under international law to take all necessary steps to prevent these harmful effects and to remediate them when they cannot be prevented. This obligation persists so long as the harmful effects persist, he added.
NATTHAKIT SINGTO (Thailand), commended the Commission for its work on “Protection of the environment in relation to armed conflict”, adding his support for the draft principle that advocates cooperation among relevant organizations with varied expertise for post-conflict assessment and remedial measures. He also welcomed the acknowledgement of the environment’s vital role in people’s well-being, as shown by the principle regarding State responsibility to make full reparation for damage done. This underlines the important element of accountability.
On “Immunity of State officials from foreign criminal jurisdiction”, he stressed the need for a balance between according immunity and preventing impunity of State officials in foreign jurisdictions. In that regard, she appreciated the value of efforts to further distinguish the steps of consideration, determination, invocation and waiver of immunity, as discussed in draft articles 8 to 11. The elements of procedural safeguards are useful to maintain friendly relations between the forum State and the official’s State, protecting the interests of both by ensuring transparency and due process, he said.
Turning to “Sea-level rise in relation to international law”, he fully supported the proposed programme of work of the study group. He stressed the urgency of the topic due to its life-changing implications for small island and low-lying States. Sea-level rise will also impact the configuration of territories, maritime jurisdictions and baselines and can have repercussions on existing maritime boundary agreements. However, the principle of “fundamental change of circumstances” should not be invoked in such situations to terminate or withdraw from agreements. Existing entitlements should be upheld to maintain friendly relations among nations and the right of Member States to maritime zones guaranteed by the Law of the Sea Convention must be protected. The work on the Law of the Sea of other relevant forms should also be taken into consideration by the Commission to ensure complementarity between the various tracks, he said.
SUSANA VAZ PATTO (Portugal), on “Protection of the environment in relation to armed conflicts”, said the draft principles strike an interesting balance between the codification of international law and elements of progressive development. It is particularly encouraging to note that the drafts incorporate rules and recommendations relating to international human rights law, Law of the Sea, international criminal law and international environmental law. Also underlining the reference to non-State actors, she recognized their role in humanitarian assistance and in the protection of the environment.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, she noted her support for the approach suggested by the Special Rapporteur regarding the procedural aspects of immunity. These aspects are key in making the immunity framework operational and in guaranteeing the balance between, on the one hand, the prevention of politically motivated proceedings and the abuse of jurisdiction, and on the other hand, the rights of victims. Recognizing that many of the proposals put forward by the Special Rapporteur constitute progressive development of international law, she recommended a further review of State practice from more diverse regions.
Turning to “Sea level rise in relation to international law”, she added that the international community must address this complex issue that is already a major threat to low-lying island nations, adding that she supported the Commission’s decision to establish a study group to identify and analyse the legal questions of this topic.
PABLO ADRIÁN ARROCHA OLABUENAGA (Mexico), on “Protection of the environment in relation to armed conflicts”, said that recent reality has demonstrated how urgent it is to address this matter. The draft principles make it clear that State actors have the primary obligation to take effective measures to protect the environment in conflict situations. However, they also indicate the obligations of non-State actors. It is especially relevant for his country to use the Commission’s working definition of non-State actor as a point of departure, he said, noting that it excludes illegal or illegitimate organized bodies. He also highlighted draft principle 9 which refers to a mechanism through which there may be effective reparations.
On “Immunity of State officials from foreign criminal jurisdiction”, he noted that the increased judicial activity before national and international tribunals confirms the relevance of this topic. States interpret immunity from criminal jurisdiction in different ways, he said, adding that this illustrates the relevance of the Commission’s work. Institutions of criminal justice are not the same across States. The Commission must strike a balance between State sovereignty, the fight against impunity and elements of bilateral diplomacy.
Turning to “Sea level rise in relation to international law”, he said that this topic is of utmost importance to the life of many States. The work of the Commission should not be a theoretical exercise. He called for concrete proposals that can define the path for this urgent matter, which looks to be the major legal matter in present times. He also called for short-terms results to inform the debate among States, adding that Statehood is a core aspect of the topic.
ANET PINO RIVERO (Cuba), regarding “Protection of the environment in relation to armed conflicts”, said it was useful to address the impact of all types of weapons on the environment, particularly the effects caused by the development, stockpiling and the use of nuclear weapons. Another important element is the relevance of a liability regime that encompasses compensation for damage, reconstruction and responsibility for the international wrongful act, to those subjects of international law that use force and, in particular, establish an armed conflict that damages the environment, which should be reflected as a principle.
Regarding the procedural aspects of “Immunity of State officials from foreign criminal jurisdiction”, she said that a balance was needed between fundamental legal interests — such as respect for the sovereign equality of States, the need to fight impunity for crimes under international law, and the protection of State officials — against a politically motivated exercise of criminal jurisdiction. She noted her concern that draft articles 8 to 16 do not establish a sufficient relationship between the proposed procedural safeguards and guarantees. As well, the application of draft article 7 does not fully express the procedures and guarantee necessary to avoid politically motivated prosecutions. She added her support to the drafting of a text on the topic within a substantive procedural framework that reinforces the legal framework established in the Charter of the United Nations and international law.
MARÍA DEL PILAR ESCOBAR PACAS (El Salvador), on “Protection of the environment in relation to armed conflicts”, highlighted draft principle 9 on responsibility of States. It is crucial to take a contemporary approach with determining such liability, she said, noting that environmental damage is not exclusive and non-prohibited activities may generate damage to third parties. Also pointing to draft principle 13 on general protection of the natural environment during armed conflict, she highlighted the use of the “term military objective” in the third paragraph. The environment is a transnational public good and its protection requires maintaining that scope.
Turning to the draft articles on “Immunity of State officials from foreign criminal jurisdiction”, she underlined the procedural implications that derive from the concept of jurisdiction. Emphasizing the importance of having a consensus legal concept of this term, she said that in her country’s case law, jurisdiction is a constitutional concept which consists of the application of law relative to the protection of rights and imposition of sanctions. Also noting the need to strike a balance between the principle of State sovereignty and the fight against impunity, she said that as consensus has not been reached on many important points, it is premature to consider a convention based on the drafts.
BORUT MAHNIČ (Slovenia), on “Protection of the environment in relation to armed conflicts”, said that environmental protection rules should govern both international and non-international armed conflicts. The comparison of legal frameworks for both types of armed conflict shows that environmental protection in non-international armed conflicts is not sufficient. Given the current prevalence of such conflicts in the international community, an update on these rules is not only welcomed, but necessary. He noted that his country appreciated the International Committee of the Red Cross (ICRC) revised Guidelines for the Protection of the Natural Environment in Situations of Armed Conflict. These guidelines are a useful and beneficial guide for future military operations. It is expected that the armed forces members and police will become acquainted with them.
On the subject, “Sea-level rise in relation to international law”, he said that there is no doubt that sea-level rise as a result of climate change is accelerating. The resulting impacts on communities are extremely worrying. Many islands have already been affected and, in the coming years, more States will be affected. Flooding and erosion risks triggered by rising global sea levels are also prominently visible in the Mediterranean and, consequently, the Adriatic Sea. There are also concrete and pressing international law dilemmas that arise, such as the issue of baselines and maritime zones determined from such baselines.
MINE OZGUL BILMAN (Turkey), on “Immunity of State officials from foreign criminal jurisdiction”, said that some expressions used in the draft articles addressing procedural aspects were ambiguous. For example, draft articles 11, 12 and 13 refer to “any means of communication accepted by both States” or “the procedures set out in international cooperation” as the primary methods of communication. International agreements are accepted as the secondary choice and diplomatic channels are accepted as the last choice. However, diplomatic channels should have a primary and central role in this regard.
Regarding the “Protection of the environment in relation to armed conflicts”, she said that instead of “shared natural resources” in draft principle 22, commentary 2, the phrases “transboundary natural resources” and transboundary waters and aquifers” should be used for “international water courses and transboundary aquifers”.
Turning to “Sea level rise in relation to international law”, she welcomed the inclusion of the topic and said sea-level rise is one of the most pressing issues of the current era. Noting that it will affect many States, especially small island States and coastal States, she expressed support for the work of the Commission on that topic.