Sixth Committee Speakers Debate Law of Sea Convention’s Role in Addressing Rising Sea Levels, as International Law Commission’s Second Cluster Review Begins
Delegates Approve Request by International Solar Alliance for Observer Status in General Assembly, Conclude First Cluster of Topics
After taking action on a request for observer status in the General Assembly, the Sixth Committee (Legal) today concluded the first cluster of topics of the International Law Commission reports and took up the second cluster, with delegates debating what role the United Nations Convention on the Law of the Sea should play in addressing rising sea levels resulting from climate change, an existential threat to many island and low-lying States not contemplated when that Convention was signed in 1982.
At the outset of the meeting, the Sixth Committee approved without a vote a draft resolution on the request for observer status for the International Solar Alliance (document A/C.6/76/L.2), which would have the General Assembly invite the Alliance to participate in its sessions and work in the capacity of observer. (For background, see Press Release GA/L/3639).
The representative of Iceland, also speaking for Denmark, Finland, Norway and Sweden, pointed out that sea-level rise can increase land degradation, periodic flooding and freshwater contamination. It also threatens the possibility of States being submerged partially or fully under water. Emphasizing the importance of the United Nations Convention on the Law of the Sea, she said that it seems premature at this juncture to comment on the precise legal implications of sea-level rise in the context of the Convention, as several issues still require discussion.
However, the representative of Antigua and Barbuda, speaking for the Alliance of Small Island States, pointed out that the Convention did not contemplate — when it was being negotiated almost 50 years ago — the threat that sea-level rise poses to the Statehood, economies, food security, health, culture and livelihoods of the 39 small islands and low-lying developing States that make up her group. Noting that the topic represents some of these States’ first interaction with the International Law Commission, she underscored that they “are determined to be engaged in the development of the international law that affects our States”.
Samoa’s delegate, speaking for the Pacific Small Island Developing States, spotlighted the urgency of addressing this issue, considering that small island States may be entirely submerged due to climate change. He also observed that the Convention does not explicitly deal with the impacts of sea-level rise on maritime zones and the rights and entitlements that flow from them. The Convention must be applied in such a way that respects these rights and entitlements. More so, once Pacific islands have established their maritime zones and notified the Secretary-General of the same, these zones must not be reduced.
The representative of Fiji, speaking for the Pacific Islands Forum, stressed that legal certainty in this area is achieved through the preservation of maritime zones and the rights and entitlements that flow from them, despite sea-level rise related to climate change. The Forum’s Declaration on Preserving Maritime Zones in the face of Climate Change-related Sea-level rise is a considered, moderate, and targeted approach to this issue, and upholds the Convention’s integrity as the global legal framework governing all activities in the oceans and seas.
The Committee also concluded its debate on the first cluster of topics from the International Law Commission’s report, as many delegates highlighted the challenges of reversing environmental degradation while speaking on “Protection of the atmosphere”. As well, speakers also emphasized that, in regard to the “Provisional application of treaties”, the practice must not be used to circumvent the requirement to ratify treaties at the State level.
Juan Manuel Gómez-Robledo, Special Rapporteur on the provisional application of treaties, told the Committee that, in developing the related Guide, the Commission understood the importance of striking a balance so as not to make the Guide more than it was supposed to be. “I think we managed to do that”, he said, adding that provisional application will always be an exceptional case because the ultimate goal is the treaty’s entry into force.
In that vein, the representative of Kenya said that the guidelines to the provisional application of treaties provide States with a flexible, voluntary tool to give effect to treaty provisions pending the instrument’s entry into force. “This achievement is an enriching elaboration of article 25 of the 1969 Vienna Convention on the Law of Treaties and is most welcome”, he emphasized.
Poland’s delegate also agreed that the draft guidelines on “Provisional application of treaties” can be a useful tool in treaty practice. However, he pointed out that his country uses provisional application on an exceptional basis because such application cannot be used as a means of bypassing Parliamentary procedures. Welcoming the Commission’s streamlining of the draft guidelines, he suggested that the Commission consider elaborating other provisions of the Vienna Convention.
Speaking today were the representatives of Cameroon, Greece, Indonesia, Canada, Russian Federation, Serbia, Algeria, Uganda, Bulgaria and the Philippines, as well as a representative of the European Union, in its capacity as observer.
Speaking on observer status for the International Solar Alliance were the representatives of France and India.
The Sixth Committee will next meet at 10 a.m. on Friday, 29 October, to continue its consideration of the second cluster of topics from the report of the International Law Commission.
Request for Observer Status
The Sixth Committee took up a resolution on the request for observer status for the International Solar Alliance in the General Assembly. (For background, see Press Release GA/L/3639).
The representative of France, thanking the 90 delegations that co-sponsored the draft resolution, said that the International Solar Alliance is a multilateral project initiated by India and his country in the context of the 2015 Paris Climate Change Conference. Noting that the Alliance has opened its door to everyone, he added that by offering low-cost energy, the Alliance is responding to the Sustainable Development Goals, particularly Goal 7 on low-cost energy and Goal 14, on urgent action on climate change.
The representative of India said the Alliance intends to bring clean and affordable renewable energy within the reach of all. Today’s action, granting observer status to the Alliance, is not only symbolic but also substantial, he said, because it will reflect the international community’s commitment to green energy diplomacy. Observer status will enable the Alliance to share its targeted inputs in current and future United Nations processes.
The Committee then approved without a vote the request for observer status for the International Solar Alliance in the General Assembly (document A/C.6/76/L.2).
Statements on Cluster 1
ZACHARIE SERGE RAOUL NYANID (Cameroon), speaking on “Protection of the atmosphere”, highlighted the current challenge of reversing environmental degradation. That includes protecting the atmosphere “from various aggressions that have a pernicious effect on human health and the environment”, he stressed. Focus should be on reducing the energy sector’s negative effects on the atmosphere and on supporting programs for energy systems that are ecologically efficient and economically profitable, particularly those based on renewable resources. He also underscored the principle of shared but differentiated responsibility, and the need to establish a dialogue regarding the degree of States’ development. Noting a consensus that global climate change is happening — largely caused by human activity — he pointed to draft guideline 8, which encourages States to cooperate with each other and with international organizations to protect the atmosphere. To this end, he called for the creation of an international authority tasked with protecting the atmosphere, that has satellites capable of observing the planet’s atmosphere, oceans and soil, in addition to land-based observational capacity.
Turning to “Provisional application of treaties”, he underlined issues with some of the draft guidelines’ terminology, questioning whether treaty provisions applied provisionally have the same legal character as the treaty itself, or if they constitute a separate, simplified agreement. Signature is not the only condition for a treaty’s entry into force. Ratification or approval is also necessary and, therefore, questions might arise as to a treaty’s partial entry into force. Parliamentary ratification is a fundamental requirement from the moment a treaty is formally concluded and not waiting for the substantial formality of ratification is a risk. An example of this is a situation in which parliamentarians reject treaty provisions submitted for provisional application. This might be an attempt, under the mantle of progressive development of international law, “to scuttle the sovereignty of States”, he commented. Underscoring that “the devil is in the details”, he said that, given these potential issues, the provisional application of treaties might increase legal insecurity and change diplomatic dynamics.
MATEUSZ SAKOWICZ (Poland) said the Commission’s preparation of instruments, which are considered to be non-binding, instead of draft articles, which can be further elaborated into conventions, is an approach that has merit in certain circumstances, since not all topics lend themselves to transposition into draft articles and subsequently into potential conventions.
With respect to the “Provisional application of treaties”, the Secretariat’s new practice of preparing a detailed document, containing comments and observations received from Governments and international organizations, should continue. Further, if possible, that practice should be applied to annual discussions of the Commission’s report as it would facilitate a genuine dialogue and exchange of views between States. The Guide can be a useful tool in treaty practice and can facilitate treaty operations at the international level. Poland uses provisional application on an exceptional basis, particularly because it cannot be used as a means of bypassing Parliamentary procedures. In that context, the Guide seems to balance different values, regarding provisional application. The Commission’s streamlining of the guidelines, specifically with respect to reservations and performance in good faith, was a step in the right direction. The Commission could consider whether other provisions of the Vienna Convention, such as the definition of a treaty, denunciation, or inter se agreements, could be similarly elaborated.
He then noted that, taking into account the lack of progress in the Sixth Committee’s work on universal criminal jurisdiction, the Commission is well-positioned to assist States in defining that principle, identifying its nature and scope and considering State practice in its application.
MICHAEL STELLAKATOS LOVERDOS (Greece), aligning herself with the European Union, said that in regards to “Protection of the atmosphere”, guideline 3 provides for the overarching protection of the atmosphere. Obligations contained in the three following guidelines flow from and concretize aspects of this general duty. Regarding guideline 4 on “significant adverse impact” for triggering the Environmental Impact Assessment procedure, she said the proposed threshold is based on solid ground, stemming from relevant case law and treaty practice, particularly the Espoo Convention, and principle 17 of the 1992 Rio Declaration on Environment and Development. However, for the sake of clarity and in line with principle 19 of the Rio Declaration, paragraph 1 should explicitly state that notification and consultations include any potentially affected State.
Turning to the Guide for “Provisional application of treaties”, she observed that guideline 2 provides guidance regarding the law and practice on the provisional application of treaties. However, it would have been useful if the Commission had specified which rules of international law, other than article 25 of the 1969 and 1986 Vienna Conventions on the Law of Treaties, reflect the applicable law related to each corresponding draft guideline in the Guide. Similarly, she said she fully agrees with the distinction made by the Commission between “provisional application” and “entry into force” in guideline 6 but would welcome a more thorough explanation of how these differ through relevant examples from contemporary practice.
MUHAMMAD TAUFAN (Indonesia), on the topic “Protection of the atmosphere”, underlined the importance of several draft guidelines, including guidelines 3, 4 and 8 concerning the obligation to protect the atmosphere, the obligation to undertake environmental impact assessments and international cooperation. Such obligations are inseparable and mutually reinforcing and comprise the essential pillars of atmospheric protection. Obligation to protect entails the obligation to prevent and to carry out enforcement measures, taking into account cooperation with other States. Enforcing those obligations comes with the prescription of relevant domestic legislation, criminalization of acts that cause atmospheric pollution and international cooperation, as well as the effective enforcement of criminal, administrative or civil measures against individual and legal persons.
Turning to the “Provisional application of treaties”, he said that, although Indonesia is not a party to the 1969 Vienna Convention on the Law of Treaties, he believes it is the basis on which the Commission should develop a mechanism or a set of guidelines. The practice of provisional application of treaties may provide a solution to address difficulties in meeting the conditions of the entry into force of the treaty. However, it should never undermine the ultimate goal of the treaty. Stressing that it is the right of States to decide on what is best for them concerning the provisional application of treaties, he added that receiving information from States and organizations, regarding the practice and regulation through their domestic legislations or internal rules, would be essential.
BEATRICE MAILLE (Canada) commended its work in elaborating the Guide to the “Provisional application of treaties”. Noting that it will promote coherence and enable exchange of best practices, she said that article 25 of the Vienna Convention on the Law of Treaties has long been the ultimate authority in this area. However, its implementation has created a lot of ambiguities in the multilateral context. The Guide will serve as a practical basis for negotiating States. Provisional application is part and parcel of the process of adopting treaties in her country, she said, adding that it can only take effect after the signature of the treaty and after the entry into force of any necessary legislative measure. Canada is happy to strengthen the practice of provisional application, she said.
Turning to the guidelines on “Protection of the atmosphere”, she said that there are a number of international frameworks dealing with this topic, and much of what is in the guidelines reflects work in these other fora. Stressing that the interpretation and implementation of the guidelines must not conflict with ongoing legal and political developments in other international bodies, she voiced support for efforts to promote consistency across various regimes. However, she stressed: “The complexity of such efforts should not be underestimated or understated”. Further, while these are supposed to be guidelines, the language periodically shifts from guideline-type language, such as “States should” or “States may” to mandatory-type language such as “Stares have an obligation”, she observed, stressing that the guidelines are non-legally binding.
Also raising an issue for future consideration by the Commission, she drew attention to arbitrary detention as leveraged in State-to-State relations. This is an emerging issue at the juncture of consular and international human rights laws, she said, adding that arbitrary detention runs counter to basic principles of human rights. The detention of foreign nationals also carries risk of undermining international relations. The Commission must seize the opportunity to consider this topic.
SERGEI A. LEONIDCHENKO (Russian Federation), observing that the International Law Commission had to adapt its working methods to pandemic realities, acknowledged the difficulty of such circumstances, as studying and formulating legal norms requires in-person meetings, editing of texts and time in libraries. Yet, the Commission passed that test “with excellent marks”, he noted. While there is agreement that the Commission must choose topics in line with the requirements of States, there is no mechanism to implement this practice. He suggested providing advance notice to States so they can speak on the topics the Commission plans to study and suggest new ones. Further, the Sixth Committee should have a targeted discussion on this issue, possibly in the format of a working group. He also emphasized the need to improve the interaction between the Commission and the Sixth Committee; when the Commission prepares draft articles on a subject the assumption is they will form the basis of an international treaty. Practice shows, however, that this does not always occur. The Commission’s products are immediately used by international and national legal bodies as if they reflected norms of customary international law.
Turning to “Provisional application of treaties”, he said that the guidelines will be useful for States and international organizations when developing international treaties. However, he stressed that provisional application must be exceptional in nature, and broad, unjustified use of this instrument should be avoided. Provisional application cannot be used to bypass procedures, rules and processes that ensure a treaty’s full entry into force.
He also suggested several other topics that the Commission could study that would have practical benefits for States, including the prevention and suppression of piracy and armed robbery at sea; the settlement of international disputes to which international organizations are party; and the legal repercussions of the pandemic.
ALEKSANDAR GAJIĆ (Serbia), addressing the “Provisional application of treaties”, said this term shall normally be terminated when a treaty enters into force. However, that might not be the case for a variety of reasons. A well-known ground for termination of the provisional application is when the State or international organization provides notification of its intention not to become a party to a treaty. However, as reflected in guideline 9, provisional application may be terminated without necessarily expressing intention to not become a party to a treaty. Whether the State or international organization will express its consent to be bound by a treaty is, at the time of provisional application, uncertain, and that should be clearly reflected in guidelines and corresponding commentaries. The Commission should provide a more detailed analysis of the termination of provisional application of a treaty and possible consequences thereof, particularly whether termination of provisional application could give rise to State responsibility. Adding that guideline 8 does not fully cover situations of unlawful termination of the provisional application, he said the relationship between guideline 8 and guideline 9 should be further examined.
MOHAMED FAIZ BOUCHEDOUB (Algeria), commending the Commission on fulfilling its mandate for the progressive development and codification of international law even amidst difficult working conditions, said its innovative methods of work made it possible to make remarkable progress.
On the guidelines on the “Protection of the atmosphere”, he applauded the remarkable work of the Special Rapporteur, who took into account the current political negotiations underway, as well as rules and principles and treaties pertaining to climate change, the depletion of the ozone layer and long-distance atmospheric pollution. “And he did this without undermining the principle of sovereign equality, prudence and precautionary principles, as well as common but differentiated responsibility”, he observed, highlighting guideline 5, which urges States to reconcile economic development and protection of the atmosphere.
Turning to “Provisional application of treaties”, he spotlighted guideline 5 according to which the provisional application of a treaty or a part of a treaty takes effect on such date, and in accordance with such conditions and procedures, as the treaty provides or as is otherwise agreed. Stressing the need to pay due attention to the principle of good faith in provisional application of treaties in order to prevent improper application, he also welcomed guideline 7 on reservations. Encouraging the Commission to include issues in its long-term programme of work that truly reflect the needs of States, he noted that his country has nominated a candidate for election to the Commission.
MARVIN IKONDERE (Uganda), associating himself with the African Group, focused on the “Protection of the atmosphere,” saying that the call for international cooperation in paragraph 8 is important, given the need for States to work together to address high levels of pollution. He also took note of all the provisions in the draft guidelines, adding that he will continue to monitor the Commission’s work in this area. He went on to commend the Commission for enabling members to participate in its meetings through a hybrid format, “in this most challenging time in the history of international law”.
JAMES N. WAWERU (Kenya), aligning himself with the African Group, thanked the Commission for the draft guidelines on “Protection of the atmosphere”. The atmosphere, as a system, is the earth’s largest single natural resource and is one of the most important contributors towards the sustaining of all forms of life on Earth, s/he stressed. The legal analysis and content presented in the draft guidelines and their commentaries constitute a delicate balance in the overall interrelationship of the diverse rules governing ecosystems and areas of international law, as they impact human wellbeing. Noting that the guidelines should form a good starting point for international cooperation, he noted that his country is the host of the United Nations Environment Assembly (UNEA), the highest-level decision-making body that addresses the critical environmental challenges facing the world today.
Turning to the “Provisional application of treaties”, he said the draft guidelines will provide States with a flexible and voluntary tool in giving effect to provisions of a treaty, pending the completion and entry into force of such treaty. “This achievement is an enriching elaboration of article 25 of the 1969 Vienna Convention on the Law of Treaties and is most welcome,” he stressed.
Also noting that Kenya nominated a female candidate for election to the Commission, he said, “we stand at the cusp of history”. The Commission must manifest the face of the United Nations by reflecting, not only geographical representation and a wide range of legal practice and scholarship, but also gender parity.
TZVETY KIRILOVA ROMANSKA (Bulgaria), aligning herself with the European Union, speaking on the topic “Protection of the atmosphere”, spotlighted the importance of draft guideline 9. That provision provides that the rules of international trade and investment law, the law of the sea and international human-rights law should be interpreted and applied, in order to establish a single set of compatible obligations. While the Commission makes clear that the polluter-pays principle and the precautionary principle do not apply to the draft guidelines, their legal relevance is not disputed by the text. Noting the relevant debate on the global deterioration of atmospheric conditions — “including climate change at the current moment” — she supported the Commission’s understanding that the term “atmospheric pollution” excludes possible causes that are the subject of current discussion at the political level.
On “Provisional application of treaties”, she welcomed the Special Rapporteur’s effort to provide detailed examples from both bilateral and multilateral treaties on various elements of the provisional application of treaties, along with practice from all geographic regions. The guidelines provide guidance and clarity on questions left unanswered by article 25 of the Vienna Convention on the Law of Treaties, and were used in the drafting of a legal opinion regarding a decision of Bulgaria’s Constitutional Court concerning a preliminary question on provisional application. She also noted that the dynamics of drafting international instruments during the pandemic provided space for the practical application of this concept and supported the preparation of a compilation of the practice of States and international organizations in this area.
Turning to “Other decisions and conclusions of the Commission”, she expressed hope that, with the assistance of the Commission’s Secretariat and the lessons learned from its last session, the hybrid format and innovative methods engaged during the pandemic, could be applied again as necessary in the future. On the Commission’s upcoming elections, she emphasized that 2021 presents an important opportunity to move the Commission’s membership closer to the goal of achieving better gender parity. She also expressed hope that the International Law Seminar will reconvene during the Commission’s next session, as it is a unique platform for introducing young lawyers from all geographic regions, especially developing States, to international law. In this sense, it is “one of the most successful achievements of international cooperation in the field of international law”.
AZELA GUERRERO ARUMPAC-MARTE (Philippines), addressing “Protection of the atmosphere”, noted that pollution under guideline 1(b) refers only to its effect beyond the State of origin. Limiting the scope to pollution with transborder effect, while consistent with the Train-Smelter Arbitration case ruling on inter-State liability, is silent on the State’s obligation to protect its own residents from pollution. Moreover, the guidelines indicate several positive obligations for States, which seem inconsistent with its nature as a non-legally binding document. Guideline 3 sets out the obligation to protect the atmosphere as a core provision and prescribes how States can discharge it — by taking appropriate measures to prevent, reduce, or control atmospheric pollution and atmospheric degradation. Guideline 4 requires States to ensure that an environmental impact assessment is undertaken on activities with significant adverse impact on the atmosphere within their jurisdiction and control.
Turning to “Provisional application of treaties”, she said that a treaty shall not be deemed subject to provisional application unless its text or other instrument expressly and categorically provides it. This would consider realities of republican States where the executive negotiates treaties but shares foreign policy powers with other bodies. Underscoring a marked hesitation in the Philippines in making a positive determination that a treaty or an international agreement shall be given provisional effect, she said this could lead to non-compliance with internal rules governing procedures of a State to consent to be bound to a treaty.
Moving to “Other decisions and conclusions by the Commission”, she noted with concern that financial constraints in recent years have reduced budgeted amounts, which, in turn, have impacted the attendance of all members in the annual session and the full substantive Secretariat. Necessary budgetary resources should be allocated for the functioning of the Commission and its Secretariat, she stressed, as well as for Special Rapporteurs and their honoraria. Sufficient, adequate and predictable funding for the Commission will ensure that all members can participate, and the main forms of civilization and the legal systems worldwide are represented in the Commission.
JUAN MANUEL GÓMEZ-ROBLEDO (Mexico), Special Rapporteur for the Provisional Application of Treaties, said he was glad that many States found the Guide on that topic useful. In elaborating that document, the Commission understood the importance of striking a balance so as not to make the Guide more than it was supposed to be. “I think we managed to do that”, he said, adding that provisional application will always be an exceptional case because the ultimate goal is the treaty’s entry into force. Expressing his gratitude for the tremendous support he received from Member States and the Secretariat of the Commission, he stressed that in preparing the Guide, he always kept in mind the needs of developing countries, in particular small island developing countries, which represent a quarter of the Organization and which do not necessarily have access to specialized advisory and consultative services. “We have to think of them first and foremost when we develop these kinds of instruments that have a practical application”, he said, once again thanking States for the trust and support they invested in him.
FATUMANAVA-O-UPOLU III PA'OLELEI LUTERU (Samoa), speaking for the Pacific Small Island Developing States, spoke on the topic “Sea-level rise in relation to international law”. He noted that the United Nations Law of the Sea Convention does not explicitly deal with the impacts of climate change-related sea-level rise on maritime zones and the rights and entitlements that flow from them. As such, it is important that the Convention is applied in such a way that it respects the rights and obligations therein, including the rights and entitlements of island States flowing from their maritime zones.
He went on to say that the Declaration on Preserving Maritime Zones in the Face of Climate Change-Related Sea-Level Rise affirms that once Pacific islands have established and notified their maritime zones to the Secretary-General of the United Nations, such maritime zones and the rights and entitlements that flow from them shall not be reduced, regardless of the physical effects of climate change-related sea-level rise. As for issues relating to Statehood, he stressed the urgency of addressing the international law implications of climate change-related sea-level rise, considering small island States may be entirely submerged due to climate change.
DANIELA GAUCI, representative of the European Union, in its capacity as observer, spoke on “Sea-level rise in relation to international law”. Taking note of the Study Group’s preliminary work, she said that, in view of the close links between law of the sea issues and Statehood and protection issues, that any recommendations could only be considered by the Commission together, at a later stage, for instance when both Issues Papers have been presented and analysed, and when necessary, further studies on the relevant sources of law and principles and rules of international law, have been conducted.
In that context, she underscored the integrity of the United Nations Convention on the Law of the Sea and said her bloc agrees that the Study Group will not propose amendments to the Convention. It is in light of this general approach that the different legal issues in relation to sea-level rise should be considered and discussed by the Commission and the Study Group, and such consideration should be based on both Issues Papers setting out all the legal issues of the law of the sea, Statehood and protection of persons.
AGNES HARM (Fiji), speaking for the Pacific Islands Forum, addressed the topic, “Sea-level rise in relation to international law”. Noting that the Study Group encouraged States to provide information of practice and opinio juris, she reported that the Pacific Islands Forum’s approach to this issue both preserves maritime zones in the face of climate change-related sea-level rise, while also upholding the integrity of the United Nations Convention on the Law of the Sea as the global legal framework within which all activities in the oceans and seas must be carried out.
She stressed that when the Forum refers to the need for legal stability, security, certainty and predictability in relation to the subtopic of the Law of the Sea, it means that this is achieved through the preservation of maritime zones and the rights and entitlements that flow from them, despite climate change-related sea-level rise. In that context, she offered the Declaration on Preserving Maritime Zones in the face of Climate Change-related Sea-level rise as a considered, moderate, and targeted approach to the issue of sea-level rise and its relationship to maritime zones, through a good faith interpretation of the Law of the Sea Convention.
ASHA CECILY CHALLENGER (Antigua and Barbuda), speaking for the Alliance of Small Island States and focusing on “Sea-level rise in relation to international law”, noted that the 39 small islands and low-lying developing States that make up her group are specially affected by sea-level rise. The maritime zones allocated to them under the United Nations Convention on the Law of the Sea are central to their Statehood, economies, food security, health, culture and livelihoods. But each of these is under threat from relentless sea-level rise, a situation not even contemplated when the Convention was being negotiated almost 50 years ago, she pointed out.
Recalling that the Alliance requested this item be put on the agenda of the Commission and made several submissions to it, she said that for some small island States, it was their first interaction with the Commission. “We are determined to be engaged in the development of the international law that affects our States”, she said, stressing that maritime zones and the rights and entitlements that flow from them shall continue to apply, notwithstanding any physical changes connected to climate change-related sea-level rise. Many small island developing States have taken political and legislative measures to preserve their baselines and the existing extent of their maritime zones through domestic legislation and maritime boundary agreements, she said, thanking the Study Group for its work so far.
ANNA PÁLA SVERRISDÓTTIR (Iceland), speaking for Denmark, Finland, Norway and Sweden, addressed the topic “Immunity of State officials from foreign criminal jurisdiction”, noting that draft article 7 on exceptions to immunity ratione materiae, in respect of crimes under international law, will require further effort. As for draft article 18, she said she favoured the inclusion of an explicit reference that recognizes the autonomy of the legal regimes applicable to international criminal tribunals, adding that a “without prejudice clause” would be a useful and appropriate means to achieve this. Moreover, the procedural mechanisms proposed in the draft articles should be seen as a whole, balancing the interests of the forum State and the State of the official. In that context, the inclusion of a draft article relating to the settlement of disputes is preferable.
Turning to “Sea-level rise in relation to international law”, she pointed out that, apart from the possibility of the territory of States going partially or fully under water, sea-level rise can increase land degradation, periodic flooding and contamination of freshwater. Emphasizing the importance of the Law of the Sea Convention, she said it seems premature at this juncture to comment on the precise legal implications of sea-level rise in the context of the Convention, as several issues still need to be discussed.