Justices’ Diverse Perspectives, Experiences Make International Court of Justice ‘Truly a World Court’, Its President Tells Sixth Committee during Annual Visit
Delegates Continue Debate on Second Cluster of Topics from International Law Commission Report
Stressing the importance of reflection over reflexive judgement, the President of the International Court of Justice told the Sixth Committee (Legal) today that it is the genuine airing of a variety of perspectives which makes that institution truly a world court.
Joan E. Donoghue, President of the International Court of Justice, during the Court’s annual address to the Committee, offered an in-depth comparison of her job as a judge versus the job of a Government legal adviser, a role she held formerly for the United States State Department. “Until I was elected to the International Court of Justice in 2010, I was one of you,” she said, noting that both roles have to address the full range of international legal issues that arise from unpredictable world events.
However, while a legal adviser has the State as client, “the judge is her own captain”, she pointed out. Noting that judges are rightly influenced not only by their own life experiences, but also by the historical experiences of their countries, especially on matters such as human rights and self-determination, she stressed the role of frank, confidential and detailed deliberations. Instead of proceeding on the basis of one’s initial impressions, a judge must take time to reflect on the perspectives of others.
Further, she said, a judge paints on a smaller canvas and with a more limited palette of colours than is available to a Government legal adviser, who can offer States a wide range of options, from bilateral cooperation to mediation. “The limited scope available to the Court can at times leave me feeling a bit frustrated,” she admitted, noting, however, that this limited strategic space is a deliberate part of the design of international courts, whose jurisdiction is based on the consent of States.
Stressing the importance of confidential deliberative processes in both roles, she said that process enables judges to learn from each other and revise their views after hearing from their judicial colleagues. Also noting the value of precedents in the work of legal advisers and judges, she said that while the Government legal adviser must look back at the positions that the State has taken in the past, judges must consider the consistency of the Court’s jurisprudence. Both roles have the responsibility to “look around corners”, she said.
The Sixth Committee also continued its discussion of the second cluster of topics from the report of the International Law Commission, with the debate on “Immunity of State officials from foreign criminal jurisdiction”, centring on whether the Commission’s work reflected customary international law. (For background, see Press Release GA/L/3646.)
Israel’s delegate said that certain draft articles on that topic constitute suggestions for progressive development, but without acknowledging that fact. Draft article 7 does not represent the current state of international law and should be deleted, she said, while also adding that draft article 18 is redundant.
Germany’s delegate also stressed that the Commission must clearly distinguish between findings of lex lata and propositions for progressive development. Far-reaching transparency on that issue would greatly benefit the finalized version of the draft articles and facilitate their broad acceptance.
Sri Lanka’s delegate highlighted the logical incompatibility between substantive criminal responsibility and procedural immunity. While the laws of war bind both States and individuals, breaches committed under Government orders are considered acts of States and give rise to State responsibility alone. Citing the International Court of Justice, he pointed out: “immunity is one thing and responsibility another.”
France’s delegate said that the Commission should concentrate its efforts on finalizing draft articles that enjoy broad consensus. In particular, he questioned whether draft article 17 should be transmitted to the Drafting Committee while significant points concerning the same are still under discussion.
El Salvador’s delegate, as well, weighed in on draft article 17 and its settlement of disputes, stressing that the Commission should clarify that States have full freedom to select their mechanism of choice for the resolution of disputes. In order to guarantee legal certainty on that front, it is necessary to clarify that no means of dispute settlement can be made mandatory.
The representative of China, also commenting on article 17, noted that dispute settlement clauses are only incorporated in legally binding instruments, such as treaties. The form of the final outcome of this topic is still open, he observed.
However, Mexico’s representative said that the existence of a procedure which includes consultation, negotiations and judicial or arbitral settlement could be very useful for States to turn to. That will institutionalize peaceful methods for resolving potential disputes resulting from violations of immunity of State officials, she pointed out.
Also speaking today were representatives of Singapore, Sierra Leone, Iran, France, Egypt, Belarus, Netherlands, South Africa, Turkey, Italy, United States, Liechtenstein, Portugal, Romania, Brazil, Cuba, Slovakia, Japan, Chile, Switzerland, Hungary, Viet Nam, Czech Republic, Slovenia, New Zealand, Estonia, Ireland, Maldives, United Kingdom, Federated States of Micronesia and Malaysia.
The representatives of Egypt, Austria and France spoke during the interactive dialogue with the Justice of the International Court of Justice.
The Sixth Committee will next meet at 10 a.m. on Monday, 1 November, to conclude the consideration of the second cluster of topics from the report of the International Law Commission and to begin consideration of the third cluster.
International Court of Justice
JOAN E. DONOGHUE, President of the International Court of Justice, noting the loss of personal engagement in the hybrid format of the current International Law Week, said she was mindful of this when choosing the topic for the day. “Until I was elected to the International Court of Justice in 2010, I was one of you,” she said, recalling her long career as a foreign ministry lawyer, most recently in the Legal Adviser’s Office of the United States State Department. She remarked that she is often asked what it is like to be a judge on the International Court of Justice and how it compares to the job of a Government legal adviser. While it might seem that these two roles have little in common, there are important similarities between them. The most obvious similarity, she pointed out, is that the core substantive work of both a foreign ministry legal adviser and an international judge involves public international law.
In neither role does one have the freedom to select the topics that find their way into one's inbox, she continued. Government legal advisers, especially at a senior level, must be prepared to answer questions on every aspect of international law, having no control over world events and national priorities. In the same way, the Court’s judges do not control the kinds of legal issues that they are called to address. These depend on the contentious and advisory proceedings that States and United Nations bodies bring to the Court. “I have been at times envious of academic colleagues who choose their areas of specialization,” she said, highlighting how the Court’s judges have to be generalists, equipped to address the full range of issues that arise under international law.
Also noting the value of precedents in the work of legal advisers and judges, she said that in formulating advice on the issue of the day, the Government legal adviser must look back at the positions that his or her State has taken in the past. “You can be expected to remind policymakers that they must consider not only whether a specific proposal is legally available, but also the implications of that decision for your State’s overall reputation as a reliable treaty partner,” she said, adding that while the Court is not bound by precedent in the manner of a common law court, the consistency of its jurisprudence is crucial. Therefore, it is incumbent on the Court to think carefully about the way it frames legal pronouncements.
She observed that academic commentators are often eager for broad pronouncements on the law. After any judgment or order on provisional measures, one is likely to see comments from scholars who argue that the Court missed an opportunity to develop or clarify a particular area of law. “During the drafting of a Judgment, I am constantly conducting mental exercises in which I test possible formulations of legal propositions against hypothetical factual situations,” she said. In that regard, because the Court’s legal pronouncements will become part of its jurisprudence constante, she tries to ensure that a general proposition of law is robust enough to remain valid in the face of facts that might be very different than those in a particular case. This intellectual exercise has much in common with the approach that she might have taken in reviewing a proposed statement by the State Department’s press office. In either role, one of the responsibilities is to “look around corners”, she said.
Also stressing the importance of confidential deliberative processes in the work of a Government legal adviser and that of an international judge, she said that while the written pleadings and the hearings at the Court are open to the public, it must be able to deliberate with absolute confidentiality. Of course, agents and counsel would love to know what gave rise to the Court’s decision, but there are strong institutional imperatives against revealing what took place during such deliberations. Judges do not always agree, but they also have the freedom to learn from each other, to adapt and revise their views after hearing from their judicial colleagues. Once they complete the deliberative process, the Court communicates its views only through its written judgments and orders. As with deliberations within the Court, the confidentiality of the internal processes of Government is very important to a sound process of decision-making by legal advisers.
Turning to differences between the two roles, she noted that a legal adviser to a Government has a client, namely the State, but “the judge is her own captain”. This raises the question of what a judge is to do when faced with legal indeterminacy, as when the choice between two competing interpretations of a treaty is a close one. “One can answer this question with platitudes, for example, by saying that the judge should always seek to render justice,” she said. However, although it is true, it is not illuminating. On matters such as human rights and self-determination, it is entirely appropriate for the views of judges to be influenced not only by their individual lived experiences, but also by the historical experiences of their respective States of nationalities. It is through the genuine airing of a variety of perspectives in frank, confidential and detailed deliberations that the Court operates truly as a World Court. A judge of the Court should always be cautious not to proceed reflexively on the basis of one’s initial impressions, she said, adding, “she must instead take time to reflect on the perspectives of others before forming a view”.
Another key difference between the two roles is that the work of a legal adviser is akin to a series of furious sprints, day after day, week after week, whereas the Court is running multiple marathons at any one time, she observed. Its role as a “World Court” places a priority on collaborative and inclusive working methods and on the involvement of all judges in matters of procedure and substance. As a result, the Court produces lengthy, detailed legal analysis that is not typical of the day-to-day work of Government legal advisers. In addition, several cases are usually under deliberation before the Court at the same time, requiring the Court and the Registry to manage competing priorities in parallel.
Also highlighting the more limited strategic space in which a judge operates, she said that a judge paints on a smaller canvas and with a more limited palette of colours than is available to a Government legal adviser. Offering an example, she described a situation where a river runs through two States, with one State downstream from the other. If the downstream State’s legal adviser finds that the upstream State has breached its international legal obligations, the downstream State could propose a treaty for compensation. “But those of you who work or have worked as a legal adviser can immediately see the obstacles to such an agreement,” she remarked. In such a case, they might devise other options, including offering an ex-gratia payment by the upstream State, an agreement for pollution control measures, the establishment of a claims commission or the services of a mediator.
Such options are not normally available to a court that is asked to decide a legal dispute, she noted, adding that the task of the court would be to evaluate the legal consequences and whether reparations are necessary. “The limited scope available to the Court can at times leave me feeling a bit frustrated, wondering whether options not available to the Court might have been more constructive,” she said. However, this bounded strategic space is a deliberate part of the design of international courts. Since the jurisdiction of international courts and arbitral tribunals is based on the consent of States, the two States no longer control the outcome of their dispute. Looking forward to the exchange with the delegates and noting that some Member States are involved in contentious cases before the Court, she added, “I am confident that you’ll be careful not to raise questions about specific cases or pending matters.”
The floor then opened up to questions for the Justice from delegations about various points of international law and procedure.
The representative of Egypt pointed out that, when judges of the International Court of Justice deliver specific judgments, they are shaping international law because what they are saying could affect international relations for years. He asked to what extent such judges are cognizant of this when issuing judgments.
The representative of Austria said that the differences between the common-law and civil-law systems are greatly exaggerated and asked if Justice Donoghue has come across any important divergences between these two approaches.
The representative of France, noting that matters of public international law are raised in both the Court and other international forums, asked about the possibility of ensuring consistency between jurisdictions and the Court’s potential role in contributing to that coherency.
Ms. DONOGHUE, responding to these questions in the order in which they were asked, said that the Court is always aware of the potential impact of their decisions on international relations, as parties “always make sure to tell us about it” while seeking to frame a particular legal question in the broader context to persuade the Court in one direction or another. While these considerations are interesting in that they help the Court to appreciate where a particular legal question is located, she said that the Court does not see guiding an outcome in a particular direction as its job. Rather, international discussions among judges are about law and facts, not the broader impact of a ruling.
On the difference between common-law and civil-law traditions, she said that this difference manifests often in the Court, because the domestic legal traditions in which judges are trained are different and judges absorbed those ideas “like our mother tongues”. There are also major differences in the way hearings are conducted, in what kind of evidence is considered relevant, in the discovery process, in witness questioning and in the drafting style for judgments.
On the relationship among various courts, she said that international law is “fundamentally decentralized”, as there is no international legislature. The Court’s decisions do not bind anyone other than the parties concerned, and only address issues raised by those parties. There is no hierarchy like that in a national system where a supreme court can speak authoritatively. While the Court is open to using the jurisprudence of other courts, the issues it addresses often do not come up in other judicial bodies; however, in the area of the law of the sea, the Court gives great weight to what other bodies say.
Statements on Cluster 2
KENNETH WONG (Singapore), addressing “Immunity of State officials from foreign criminal jurisdiction”, underscored the need for the commentaries of draft article 8 to address the realities of circumstances where States take coercive measures in the exercise of their criminal jurisdiction. That also applies to draft article 9, paragraph 1, concerning the obligation to notify a foreign official’s State before taking coercive measures that may affect that official. Regarding draft articles 17 and 18, he highlighted the inappropriateness of setting time limits for negotiations or prescribing specific procedures. Also, pointing to diverging views towards an issue among Commission members, he emphasized the need for Member States to comment on the full set of draft articles at the conclusion of the first reading.
Turning to “Sea-level rise in relation to international law”, he underlined the need to examine in further detail complex issues with a diversity of views. These include ambulatory versus permanent baselines, preservation of maritime zones under the United Nations Convention on the Law of the Sea and how State practice is relevant to customary international law or interpretation of the Convention. The principle of equity could be particularly relevant when considering the impact of climate-change-induced sea-level rise on development needs of small island developing States. These considerations may operate differently depending on the types of maritime zones and rights exercisable within them, the types of baselines involved and the extent to which interests of third States and freedom of navigation are engaged, he added.
MICHAEL IMRAN KANU (Sierra Leone), regarding “Immunity of State officials from foreign criminal jurisdiction”, welcomed the progress with the adoption of the draft articles, including draft article 8 ante, draft article 8, draft article 9, draft article 10, draft article 11 and draft article 12. The Commission would need to overcome the divergent views of its members on draft article 7, and also consider the question of inviolability and the outstanding definitions in draft article 2 (formerly draft article 3), he added.
On “Sea-level rise in relation to international law”, he noted that the Commission finally had the opportunity to discuss the first Issues Paper. This addresses the possible legal effects of sea-level rise on the baselines and outer limits of the maritime spaces that are measured from the baselines. Among other things, it includes the possible consequences on the rights and jurisdiction of the coastal State, as well as third-party States, in established maritime zones where maritime zones shift because part of the internal waters become territorial sea, part of the territorial sea becomes contiguous zone and/or exclusive economic zone, and part of the exclusive economic zone becomes high seas.
Reiterating a call for inclusivity and full representation of the diverse sources of juristic contributions that reflect the contemporary international law community, he went on to say he appreciated that the Commission has recognized the legitimate concerns expressed by States on sea-level rise. Undeniably, the topic poses an immense challenge of seeking solutions to the complex legal and technical issues it raises, he asserted.
NASER ASIABI POURIMANI (Iran), addressing “Immunity of State officials from foreign criminal jurisdiction", said draft article 17 should be read with draft article 7 ‑ about which there are several controversies ‑ and be applied only as a dispute production machine which will escalate tensions in relations between States. As well, the final clauses, including a dispute settlement clause, make sense only if the final product will be a treaty. While the Commission had yet to decide on the final product, the time does not seem ripe to include such a clause in the draft. Regarding the relationship between immunity in national and international criminal tribunals, he said that a person prosecuted by an international tribunal cannot affect his immunity before the forums of any foreign State. In other words, a “without prejudice” clause for justifying the relation between national courts and international tribunals is of no relevance for the purpose of the current topic. As for draft article 18, he expressed doubt it can be applied to States not parties to the statute of international criminal tribunals, particularly the Rome Statute of the International Criminal Court.
Turning to “Sea-level rise in relation to international law”, he said the exact range of its impacts on the entire planet is yet to be discovered. Hence, the Commission should be cautious about its studies, he said, particularly on protection of persons affected by sea-level rise. Emphasizing that maritime zones designated by States cannot be assimilated into the established territorial boundaries, he said coastal States, by determination of their maritime zones, enjoy sovereign rights granted through customary international law. Inevitably, sea-level rise might lead to changes in baselines and outer limits of maritime zones, but any alteration in lines should be based on principles of equity and fairness.
Mr. ALABRUNE (France), speaking on “Immunity of State officials from foreign criminal jurisdiction”, said that customary rules pertaining to immunity do not exonerate their beneficiaries from all criminal responsibility and should not lead to impunity. These rules are firmly rooted in contemporary State practice and constitute a fundamental element of good relations between States. On the possibility of introducing a without-prejudice clause in the draft articles, he stressed that such a clause should not introduce any doubt as to the jurisdiction or autonomy of international criminal courts. He also questioned whether draft article 17, relating to dispute-settlement mechanisms, should be transmitted to the Drafting Committee while significant points concerning the same are still under discussion. The Commission should concentrate its efforts on finalizing draft articles that enjoy broad consensus and on giving States the ability to comment on completed draft articles following their first reading.
Turning to “Sea-level rise in relation to international law”, he said that France, with its vast coastal and maritime areas, is ready to lend the Commission all necessary assistance to contribute to its successful work on this subject. However, it is important to ensure transparency in the Commission’s work. The current formula of addressing this issue in a Study Group does not allow for this. A subject so important to States ‑ especially island States ‑ must also include the Sixth Committee. Noting that the relevant legal framework is the Convention on the Law of the Sea, he said that the Commission should draw inspiration from the Convention’s principles of stability, security, certainty and predictability when tackling issues linked to sea-level rise, especially concerning maritime baselines.
On “Succession of States in respect of State responsibility”, he welcomed the Commission’s work and took note of draft articles 7, 8 and 9, provisionally adopted by the Commission at its seventy-second session.
He also encouraged the Commission, in its work on the “General principles of law”, to account for the diversity of legal systems. He added that he was perplexed by the category of “general principles of law formed within the framework of the international legal system”, as general principles of law originate in national legal systems before being transposed to the international level. Therefore, he said, this excludes the possibility of recognizing the existence of general principles of law directly formed within the framework of the international legal system.
AHMED ABDELAZIZ AHMED ELGHARIB (Egypt), on "Immunity of State officials from foreign criminal jurisdiction", recalled his delegation’s previous statement and reiterated the need to approach this topic with caution. The Commission must regulate the current status on international law instead of codifying new laws, he said, expressing strong reservation on the exemptions from rationae materiae in draft article 7. Turning to article 8 ante, he stressed the need for procedural safeguards. Also emphasizing the importance of distinguishing between rationae personae and rationae materiae, he said that the current language of article 8 has neglected this distinction. While welcoming the reference in that article to the need for the competent authorities to examine the question of immunity before initiating criminal proceedings, he said that adding further specification to this article will be useful.
On “Sea-level rise in relation to international law”, he stressed the importance of considering the delimitation of maritime boundaries and the determination of baselines upon which maritime boundaries are determined. Baselines should be fixed and not ambulatory, he said, voicing support for the Study Group’s plan to consider the relevant sources and principles of international law, in particular, the principle of the immutability of borders. Also emphasizing the need to accurately identify the positions of Member States, whether through their submissions or through the national statements in the Sixth Committee, he said that the protection of persons affected by sea-level rise is one of the most important topics and requires a comprehensive approach that includes economic, social and cultural components.
MAHMOUD DAIFALLAH HMOUD (Jordan), Chair of the International Law Commission, responding to the representative of France regarding the topic of "general principles of law" formed in the context of the international legal system, said that the Commission has not decided on this matter. While the Chair of the Drafting Committee has summarized their debate on this matter, he said, the Commission intentionally did not look into draft conclusion 3 yet as it is seeking the views of States on this matter again.
PAVEL EVSEENKO (Belarus), speaking on “Immunity of State officials from foreign criminal jurisdiction”, said that such immunity is a customary rule of international law and a direct reflection of the principles of sovereign equality and non-interference in the internal affairs of States. Sovereignty can only be limited pursuant to the Charter of the United Nations; a State is permitted to deprive or limit the immunity of another State’s official only in line with Chapter 7 of the Charter or in the case of voluntary waiver. Certain States’ usurpation of the Security Council to initiate criminal prosecution against officials of foreign States harms international peace and security, creates regional tensions and contributes to legal uncertainty. He stressed that the Commission’s work in this area must account for the considerations of all States and, rather than focus on upholding human rights and procedural guarantees, concentrate on preventing abuse by the State claiming to exercise jurisdiction.
Turning to “Sea-level rise in relation to international law”, he said that this topic is more relevant to the law of the sea, and less so to potential losses of Statehood, in the event of territorial loss, due to rising sea levels. This situation is unlikely to occur in the near future, and the Commission’s work in this area could instead be used to develop practical recommendations for States to regulate legal relations related to sea-level rise. He also said that the Convention on the Law of the Sea is the main source for resolving possible questions relating to the delimitation of maritime zones in the case of rising sea levels, adding that other relevant norms of customary international law must also be considered in such situations.
LIGIA LORENA FLORES SOTO (El Salvador), on the topic “Immunity of State officials from foreign criminal jurisdiction”, observed that article 8 strikes a harmonized balanced that respects the unique legal systems of States. Regarding the caveats on the terms of criminal jurisdiction, it could be useful to assess comments made by Member States. Regarding the commentary on article 18, the Commission should consider the nature of the provision as it limits itself to separating legal regimes. As such, the draft should be placed in draft article 3, paragraph 1, because it is related to the scope of application. On the related texts addressing dispute settlement, the Commission should consider the purpose for which it was established and should clarify that, to guarantee peaceful relations, States have full freedom to select their mechanism of choice for the peaceful resolution of disputes. In order to guarantee legal certainty on that front, it is necessary to clarify in the commentaries on draft article 17 that no means of dispute settlement can be made mandatory.
Turning to “Sea-level rise in relation to international law”, she underscored that the topic reflects the needs of international society as it incorporates elements of the development of separate international instruments. Sea-level rise must be recognized as a scientifically demonstrated fact before the Commission. That would allow for its legal implications not being limited to the law of the sea. The work on this matter is vital, given the multidimensional aspect of the issue, she said. Furthermore, broaching the issue must involve reference to other relevant international law sources and norms.
RENÉ LEFEBER (Netherlands), on the “Immunity of State officials from foreign criminal jurisdiction” said that the distinction between the primary obligations under the law of immunities and the secondary obligations in the context of breaches of that law is blurred. This affects the nature of the provisions included, and the extent to which they reflect obligations of conduct or mere hortatory statements. Further, the Commission sometimes reflects State practice as supporting a rule of customary international law, whereas this practice may be just a practice rather than the reflection of an obligation. As soon as the intention of the official’s State is clear, immunities must be considered to be invoked. He also questioned whether the commentary on draft article 10, paragraph 2, reflects customary international law. In addition, the draft articles seem to ignore the general rules on obligations, in particular the rules on what constitutes a binding obligation under international law; rules on circumstances precluding wrongfulness; and rules on the termination, suspension, and invalidity of obligations. This is illustrated by, amongst others, the provision on the irrevocability of waivers in draft article 11, he said, adding that this provision should be suppressed. A waiver must constitute a unilateral act of State, binding the State of the official. The forum State has a legitimate expectation that this unilateral act will be performed in good faith.
Commenting on “Sea-level rise in relation to international law”, he underlined his country’s commitments to the notions of legal certainty, stability and security while remaining firmly grounded in the primacy of the Convention on the Law of the Sea. However, he pointed out that the option of securing the outer limits of established maritime zones to prevent States from losing maritime zones has not received much attention in the report. He welcomed the Study Group’s proposal to further study the issue of navigational charts, and the different functions of the charts of the International Hydrographic Organizations and the charts that are deposited with the Secretary-General of the United Nations for the purposes of registration of maritime zones. In addition, the report does not contain an elaborate discussion on navigational safety and the potential dangers to navigation in the case of securing baselines.
MATHU JOYINI (South Africa), addressing “Sea-level rise in relation to international law”, noted that every State is likely to feel the effect on sea-level rise. Therefore, the Commission’s work is fitting and timely. Thanking the Commission for the first Issues Paper, she said that the subtopics under consideration, namely, law of the sea, Statehood and protection of persons, are complex topics that may have significant consequences for all States. Noting similar work on baselines being done by the International Law Association, she stressed that work should be carried out in close consultation to avoid a fragmented approach. She also highlighted the importance of distinguishing between lex lata, lex ferenda and policy options, underscoring that it will be premature to consider preparing a set of draft articles to be presented to States for the negotiation of a global framework convention. Instead, further analysis of sources of law, current State practice and opinio juris and navigational charts will benefit this topic.
Mr. KAPUCU (Turkey), speaking on “Immunity of State officials from foreign criminal jurisdiction” proposed the inclusion of State officials’ consent to the first paragraph of draft article 11 and voiced support for that article’s fifth paragraph, which says the waiver of immunity is irrevocable. He also expressed some hesitation regarding draft article 17 that was referred to the drafting committee. It would be more appropriate if the question of suspension should be treated on a case-by-case basis by the court or arbitral tribunal in the context of provisional measures. Furthermore, a dispute settlement clause would only be relevant if the draft articles were intended to become a treaty. As such, a more general clause, regarding procedural recommendations, would be appropriate.
Turning to “Sea-level rise in relation to international law”, he cited the findings of the recent Intergovernmental Panel on Climate Change report. Since countries are not able to fight climate change on equal terms, close international collaboration between all countries is necessary, he said, emphasizing that developed countries must support developing countries with adequate financial and technical means, technology sharing and climate resilience building. Sea-level rise has potential to create many legal issues on different levels. For example, the areas where delimitation of maritime jurisdiction areas have not taken place, sea-level rise might have potential effects for the final delimitation. As such, he encouraged the consultations and discussions on the Study Group’s analysis of the legal dimensions of sea-level rise.
STEFANO ZANINI (Italy), regarding “Immunity of State officials from foreign criminal jurisdiction”, said he appreciated the proposed non-prejudiced clause under draft article 18, which safeguards the speciality of legal regimes creating international criminal tribunals. Yet these regimes are not insulated from general international law. He noted his agreement with the Special Rapporteur’s acknowledgement that dispute settlement mechanisms are especially linked to treaty instruments. It is the Commission’s standard practice that draft articles, unlike other Commission products, are recommended for transformation into a treaty.
Turning to “Sea-level rise in international law”, he said that Italy is leading initiatives to address sea-level rise, domestically and through international cooperation. While some of the Commission’s work on the legal implications of sea-level rise are very timely, he acknowledged the limitations established in the 2018 syllabus, particularly the assertion that modifications to international law, including the 1982 United Nations Convention on the Law of the Sea, will not be proposed. He also underlined the importance of stability, security and legal certainty, regarding baselines and maritime delimitation. Regarding paragraph 171 of the first Issues Paper, he stressed that the freedom of the high seas is subject not only to the “due regard” condition, but also to other conditions and limitations provided under the 1982 United Nations Convention on the Law of the Sea and customary international law, in accordance with article 87, paragraph 1 of the Convention on the Law of the Sea.
XU CHI (China), on "Immunity of State officials from foreign criminal jurisdiction", said that draft article 17 has the character of a special dispute settlement clause. Noting that dispute settlement clauses are only incorporated in legally binding instruments, such as treaties, he pointed out that the form of the final outcome of this topic is still open. Further, that article sets a six-month or twelve-month time limit for negotiations between States, which seems to imply that if a settlement is not reached within these time limits, the parties concerned should submit the dispute to arbitration or judicial settlement. This kind of provision may, in practice, create difficulties for countries.
Turning to “Sea-level rise in relation to international law”, he said that sea-level rise is a frontier topic that will have a substantive impact on the existing legal regime of the sea. Reiterating the call for transparency in the processes of the Study Group, he said that it should fully reflect national concerns to ensure credibility and representativeness. The issue of sea-level rise had not been considered in the negotiation of the Law of the Sea Convention. Therefore, the study of this issue should consider other sources of law. However, no uniform practice has formed yet on the issue of sea-level rise, he said, cautioning the Commission against over-emphasizing regional practices and causing fragmentation of legal norms.
JULIAN SIMCOCK (United States), focusing on “Sea-level rise in relation to international law”, encouraged the Study Group to be clear on distinctions between lex lata and lex ferenda. As for the Group’s intention to explore a range of additional sources of law on the baselines and maritime zones, he emphasized the universal and unified character of the United Nations Convention on Law of the Sea.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said he did not agree that draft article 7 is supported by consistent State practice and opinio juris. Thus, it does not reflect customary international law. One concern is that the prior reports on procedural aspects of immunity reflected significant methodological challenges. There is generally very little visibility into criminal investigations that do not result in prosecutions brought by national authorities; case law in that area is exceedingly sparse. As such, he underscored that the adopted provisions should not be viewed as codifying existing international law, but instead should be viewed as proposals for the development of law. He expressed concern that the eighth report addresses the immunities of State representatives before international criminal tribunals, even while recognizing such issues are clearly beyond the mandate of the Commission’s project on immunities of State officials before foreign criminal jurisdictions.
MEITAL NIR-TAL (Israel) said that the Commission’s work on “Sea-level rise in relation to international law” should not undermine the delicate balance achieved by existing maritime boundary agreements, which contribute to positive cooperation, as well as regional and international stability. In that context, she noted the discussion and conflicting views in the Commission’s report regarding the nature of baselines and maritime limits, and whether they are “inherently ambulatory” or, rather, should be considered fixed in nature. She also expressed concern over several statements in the recent report, as well as the methodology employed by the Study Group. In regard to the potential emergence of rules of customary international law, given the limited State practice, it is doubtful whether any conclusion regarding evidence of existing binding rules of international law about sea-level rise could be drawn at this juncture, she said.
Turning to the topic of “Immunity of State Officials from Foreign Criminal Jurisdiction”, she said that certain draft articles have failed to reflect the current state of customary international law accurately, and instead constitute suggestions for the possible progressive development of the law, without acknowledging that fact. As for draft article 7, it does not represent the current state of international law and should be deleted. Regarding draft article 10, she said she rejected the possible underlying assumption that the question of immunity should be considered by the forum State only if the State of the official invokes immunity. Instead, there is a presumption of immunity in the case of foreign State officials that applies unless the State of the official gives express notice of the lack of immunity in a particular case or explicitly waives the official’s immunity in writing, or until a clear determination of the absence of immunity is made. On draft article 18, she recalled that the Special Rapporteur argued that a specific draft article on the issue of international criminal tribunals would be necessary to clarify that immunities before international criminal tribunals should be excluded from the scope of the draft articles. Thus, draft article 18 is redundant and may cause confusion; it should therefore be omitted.
MATTHEW EDBROOKE (Liechtenstein), speaking on the topic of “Sea-level rise in relation to international law”, said he appreciated in the decision to include subtopics on the protection of persons affected by sea-level rise and on Statehood. In territorial inundation due to sea-level rise situations, the territory and the population does not necessarily fall under the control of a different State or Government, he pointed out. Instead, it can be presumed that the population and the Government persist at the point of inundation. Given the concerning trajectory of the world, people most immediately affected must be able to rely on the presumption that international law will continue to uphold their right to self-determination, including its manifestation through Statehood, as well as through civil and political, economic and social rights.
SUSANA VAZ PATTO (Portugal), in regard to “Immunity from State officials from foreign criminal jurisdiction”, said that she agreed with the Special Rapporteur that it does not seem reasonable for the Commission to ignore the existence of international criminal tribunals when considering immunity from foreign jurisdiction. While the topic is indeed limited in scope to immunity from foreign jurisdiction, the Commission must ensure that its current work on the topic does not alter nor compromise existing norms and principles of international criminal law. As well, the relationship between national and international courts must be considered, as international criminal courts often rely on States for exercising their jurisdiction pursuant to the principles of subsidiarity and complementarity. She noted that she could support a related provision in the draft articles, as well as a clause relating to dispute settlement. On that, draft article 17 as proposed by the Special Rapporteur, is a good starting point for discussion.
Turning to “Sea-level rise in relation to international law”, she said discussions on the topic are important and timely, given the challenges posed by sea-level rise and their expected profound and widespread impact throughout the planet. She commended the approach in the first Issues Paper of mapping past and current State practice on response measures to sea-level rise, as well as its comments on other useful elements — such as treaty and customary international law, judicial decisions of international and national courts and tribunals, and the analyses of scholars. Referring to the concluding report of the UN75 Office, published in January, she noted that the key findings of its survey and dialogues pointed out two main challenges that will intersect in subtopics of the future work of the Study Group — climate change and human rights. In that regard, the work of the Study Group — with the second Issues Paper on the remaining subtopics of study: Statehood and protection of persons affected by sea-level rise — is of great interest.
ALINA OROSAN (Romania), on “Immunity of State officials from foreign criminal jurisdiction”, commended the Special Rapporteur’s decision to address the question of the relationship between the immunity of State officials from foreign criminal jurisdiction and the obligation to cooperate with international criminal tribunals. She added that the “without prejudice” clause is meant to clarify that the draft articles neither apply to nor address the rules of international criminal tribunals whose autonomy is thus respected. Among other comments, she said there is merit in referring to “internationalized criminal tribunals” or even “relationship to specialized treaty regimes”, to accommodate the existence of hybrid tribunals. Regarding article 8 ante, she said that the language constitutes a fair attempt to ensure the applicability of all procedural safeguards to all circumstances in which a State official might face the exercise of criminal jurisdiction by a foreign State. On article 8, she noted that the question of immunity should be addressed immediately when knowledge of its incidence, in the context of a criminal proceeding, occurs.
Turning to “Sea-level rise in relation to international law”, she said that the first Issues Paper provides a substantive, documented basis for further analysis and the challenging task ahead: to undertake a mapping exercise of the legal questions raised by sea-level rise and its interrelated issues. One of the most complex elements of the issue pertains to the effect that rising sea-level has on the baselines from which maritime areas are to be determined. In this regard, her country had provided examples of national legislation and treaty practice that might be relevant — even if indirectly — to sea-level rise in relation to the law of the sea. Their national legislation could be interpreted as favouring an ambulatory system of baselines, “though a connection with the specific case of sea-level rise is difficult to make, given the particular character of the Black Sea as a semi-enclosed sea and less exposed to this phenomenon”. She also underscored the integrity of the Convention of the Law of the Sea, stating that the outcome should not lead to amending it.
GEORGE RODRIGO BANDEIRA GALINDO (Brazil), on the issue of “Immunity of State officials from foreign criminal jurisdiction”, said that while that principle is important, the jurisdiction of international criminal tribunals has a different legal basis which is linked to the objective of avoiding impunity for the most serious crimes and to the principle of complementarity. Agreeing with the Special Rapporteur that the discussion of immunity of State officials should not proceed without regard to the existence of international criminal tribunals, he said that adding a “without prejudice clause” to draft article 18 could provide a practical solution to the matter. That article should not be read as creating a hierarchical relationship between different legal frameworks, but rather recognizing that specialized treaty regimes may have a different treatment to immunities than customary international law provides for national jurisdictions.
Turning to the pressing topic of “Sea-level rise in relation to international law”, he pointed out that Brazil is a country with almost 8,000 kilometres of coastline and a coastal population of over 50 million people. Sea-level rise poses an existential threat to some States, threatens human livelihoods, affected population mobility and may have legal implications over existing maritime zones and borders. “Thus, legal certainty over this topic can be key in preventing disputes between Member States,” he said, welcoming the work of the Study Group and looking forward to its discussions on issues related to Statehood and the protection of persons affected by sea-level rise.
ARIANNA CARRAL CASTELO (Cuba) said that the Commission’s work on “Immunity of State officials from foreign criminal jurisdiction” must maintain a balance between the principles of sovereign equality, the need to combat impunity and the need to protect State officials from spurious or politically motivated exercise of criminal jurisdiction. Further, it must consider the types and scope of immunity granted by national legislation, and require advance communication of any claim to exercise jurisdiction over a State official. This obligation to notify is the first guarantee for a State to safeguard its interests by invoking or waiving immunity. She added that work on this topic must balance respecting international law and ensuring adequate procedural safeguards.
Turning to “Sea-level rise in relation to international law”, she pointed out that the Convention on the Law of the Sea does not provide answers to all the questions posed by this topic. However, she stressed the importance of upholding its tenets on maritime borders, despite physical changes to the same, resulting from rising sea levels. Further, if States lose territory as a result of sea-level rise, all principles of international law must apply. Cuba, for its part, is ready to share its experience in protecting those who live in coastal areas from extreme climate events, she said.
PETER KLANDUCH (Slovakia), focusing on “Immunities of State officials from foreign criminal jurisdiction”, welcomed the logic flow of draft provisions addressing procedural aspects of immunities. He supported the stance that the forum State has to assess the issue of immunity in each individual case without delay. The existence of international criminal courts’ jurisdiction should not be overlooked, when addressing immunities in the general context of fight against impunity. However, international criminal jurisdiction is clearly outside the scope of the present topic, since it always stems from a specific treaty rather than from general international law. Nonetheless, he would prefer that the topic not be a stand-alone article, but instead be addressed in draft article 1 on scope.
On the topic “Sea-level rise in relation to international law”, he said that, while the issue is of great importance to many States, its prominence may lead to the preference of certain progressive development elements. The Study Group should ground its work in relevant practice of States and international and regional organizations. He also reiterated that any outcome on that topic must reaffirm the universal nature of the Convention on the Law of the Sea and the vital need of preserving its integrity, as well as the importance of principles incorporated in the Convention, including but not limited to, the balance of rights and obligations between coastal States and other States.
KAWASE TARO (Japan), commending the Commission’s work on “Immunity of State officials from foreign criminal Jurisdiction”, said that the provisionally adopted draft articles 8 to 12 in the plenary session represented great progress, compared to the last two sessions. However, he said that the divergent views regarding crimes which do not apply immunity ratione materiae (draft article 7) have been impacting the entire discussion on this topic, including drafting article 8 ante. He expressed his expectation that this issue will be resolved, and the Commission will show Member States a persuasive explanation concerning draft article 7.
Regarding “Sea-level rise in relation to international law”, he praised the Commission’s dedicated work on this issue over the past few years. As shown in the Declaration on Preserving Maritime Zones in the Face of Climate Change-Related Sea-Level Rise, issued by the Pacific Islands Forum in August, climate change-related, sea-level rise can imperil the livelihoods and well-being of peoples, particularly in island countries; it undermines the full realization of a peaceful, secure and sustainable future. He expressed his hope that the Study Group will expand discussion on the identified topics on a priority basis. It is significant that many countries have agreed with the primacy of the United Nations Convention on the Law of the Sea, even in tackling climate change-related sea-level rise. He also expressed his appreciation that the Pacific Islands Forum agrees with this understanding. The Convention on the Law of the Sea sets out the legal framework within which all activities in the oceans and seas must be carried out.
NATALIA JIMÉNEZ ALEGRÍA (Mexico), speaking on “Immunity of State officials from foreign criminal jurisdiction”, said that the norms on immunity of State officials enable the continuity of diplomatic institutions. The existence of clear rules serves to avoid abuse and allows for the development of peaceful international relations. Voicing agreement with the Commission’s decision to exclude questions relative to immunity before international criminal tribunals, she stressed that domestic justice and international criminal justice are two separate spheres. Regarding the dispute settlement clauses, she added that the existence of a procedure which includes consultation, negotiations and judicial or arbitral settlement could be very useful for States to turn to. That will institutionalize peaceful methods for resolving potential disputes resulting from violations of immunity of State officials. Further, she stressed, the study of procedural safeguards should not be a pretext for reopening already adopted draft articles.
Turning to “Sea-level rise in relation to international law”, she said that the sea-level rise is very closely linked to global warming. It was important to discuss how this phenomenon impacts the rights and obligations of States, with regard to their territory and the law of the sea. While the topics to be tackled by the Working Group are extremely technical, they have a great impact on the international legal order. Highlighting the status of islands, rocks and low tide elevations, as well as the consequences of the displacement of maritime zones, she said these can have consequences on the sovereign and economic rights of States. It was also crucial to look at the practice of coastal States since these are more vulnerable to the phenomenon of sea level rise. She welcomed the Commission’s decision to broaden its study of the practice and opinio juris of various regions of the world, including Latin America.
Mr. DEVILLAINE GOMEZ (Chile) said that the topic of “Sea-level rise in relation to international law” is important for his country, which is exposed to the Pacific Ocean across 5,000 kilometres of coastline. Current scenarios suggest that, even if the international community managed to reduce greenhouse-gas emissions, serious collateral effects that imperil lives and human rights would pose questions for international law. Against that backdrop, it is necessary to assist those who will be affected by seeking viable solutions under international law to the factual consequences of sea-level rise. The Study Group on this topic must consider the Convention on the Law of the Sea and give its principles of international stability and peaceful coexistence of States the prevalent position they deserve. He also pointed out that sea-level rise would not be a fundamental change of circumstances like that contemplated by article 62 of the Vienna Convention on the Law of Treaties, as it affects both land and maritime borders, which should be considered unchangeable. Legal stability and certainty require maintaining maritime baselines and external limits for maritime zones, he added.
NATHALIE SCHNEIDER RITTENER (Switzerland), speaking on the topic “Immunity of State officials from foreign criminal jurisdiction”, said that, while it is important that relations between countries are stable and predictable, it is also essential that State officials who have committed offences — in particular violations of human rights or international humanitarian law — are held accountable. While recognizing the importance of notification within the general framework of procedural safeguards, she noted that prior notification of that kind can have undesirable effects on the forum State's exercise of its criminal jurisdiction. The Commission should clarify those undesirable effects and assess whether prompt notification, as provided for in article 42 of the Vienna Convention on Consular Relations, would mitigate them. The Commission should also define in greater detail the acts that would imply such a notification obligation. Welcoming the recognition of the specific rules governing the functioning of international criminal tribunals and thus of State obligations, she nevertheless voiced support for language referring to “internationalized criminal jurisdiction”, rather than “international jurisdiction”, in order to include hybrid tribunals, as well.
RITA SILEK (Hungary), aligning herself with the European Union and addressing “Immunity of state officials from foreign criminal jurisdiction”, said the complex nature of immunities should not diminish the protection of the international community’s fundamental interests. Rules on immunity should not be considered in isolation, but in their interaction with other norms of international law. Referring to adopted draft article 11, she noted that the waiver of immunity is a right, not an obligation of the official’s State. As the holder of this right, a State can give consent to the exercise by another State of criminal jurisdiction over one of its officials. Thus, Hungary welcomes adoption of paragraph 5, which states that the waiver of immunity is irrevocable, she said, noting that the text of this paragraph is in line with the general rules of immunity and supports legal certainty.
Turning to “Sea-level rise in relation to international law”, she highlighted the importance of climate change adaptation, observing that a slower rate of sea-level rise might help populations avoid and mitigate other human crises, like forced migration, human displacement and economic, as well as non-economic losses. The main driver of observed sea-level rise during past decades is most likely anthropogenic, but it can be better managed with fast mitigation and robust resilience-focused policies. Sea-level rise is a crucial problem for States directly affected by it and for the entire international community. All countries are or will be affected by its primary or secondary effects, she said, stressing the importance of paying due attention to the problem.
CHRISTOPHE EICK (Germany), speaking on “Immunity of State officials from foreign criminal jurisdiction”, underscored that it is essential for the Commission to clearly distinguish between findings of lex lata and propositions for a progressive development of international law. It should consider whether the respective status of each draft article is marked in the commentaries. Far-reaching transparency on that issue would greatly benefit the finalized version of the draft articles and facilitate their broad acceptance. Any substantial change of international law in this area, proposed by the Commission, would have to be agreed upon by States by treaty. He also highlighted the importance of clearly distinguishing between the various types of immunity under international law and, respectively, the different situations in which questions of immunity under international law might be raised.
Turning to “Sea-level rise in relation to international law”, he said with regards to its root cause — climate change — long-term sea-level rise must be addressed by all States based on cooperation, using the mechanisms, rules, and institutions the multilateral system offers. Furthermore, as the Convention relating to the Status of Refugees and its 1967 Protocol do not apply to so-called “climate refugees”, it might be helpful to further clarify possible human rights based non-refoulement obligations of States.
NGUYEN QUYEN THI HONG (Viet Nam) addressing “Sea-level rise in relation to international law”, observed that hundreds of millions of people in small island developing States and low-lying coastal areas are at risk of inundation due to sea-level rise. As such, the study of the legal implications of sea-level rise would contribute to enhancing understanding of the multi-faceted implications of that phenomenon, she said. The approach to address the implications of sea-level rise should ensure the stability and security in international relations, including the legal stability, security, certainty and predictability, without involving the question of amending or supplementing the Convention on the Law of the Sea. For its part Viet Nam, along with twenty Member States, convened an Arria-formula meeting of the Security Council to exchange views and enhance collective understanding of the security implications of sea-level rise, she reported.
MAREK ZUKAL (Czech Republic), on “Immunity of State officials from foreign criminal jurisdiction” said that with regard to draft article 18, it is clear that the draft articles do not apply to the autonomous regimes of international criminal tribunals, which are established by special instruments with their own rules and scope of application. Draft article 18 simply restates this obvious fact. This provision does not imply any precedence of the jurisdiction of international tribunals and cannot create any new obligations or exemptions to immunity for States, which are not bound by these instruments. The provision can be included in the draft as another “without prejudice” clause. Concerning draft article 17 on dispute settlement, he said he does not support the suggestion to include a mechanism for the settlement of disputes between the forum State and the State of the official. Such an inclusion would only be relevant if the draft articles were intended to become a treaty and this would not be an appropriate outcome of the work on this topic. Any provision on the settlement of disputes, if retained in the draft, could only serve as a potential non-binding guidance on how to resolve disputes in this area.
Turning to “Sea-level rise in relation to international law”, he said the international community faces numerous challenges, resulting from climate change leading to sea-level rise. There is a legal dimension to this problem, and it is of paramount importance that the work of the Commission and the Study Group on this topic proceed in strict adherence to the existing legal regime of the law of the sea, in particular the Convention of the Law of the Sea. It is important that the work take into account the practice of the broadest possible number of coastal States, he said, noting that several such States did respond to the Commission’s invitation to provide information in this regard.
PETRA LANGERHOLC (Slovenia) said the topic “Immunity of State officials from foreign criminal jurisdiction” requires careful and thorough examination, which considers State practice, opinion iuris and trends in international law. Further efforts on the topic could contribute to the progressive development and codification of international law, she noted. The three-phased system for the settlement of disputes is a relevant indication of which tools for dispute settlement are of a primary nature. A larger toolbox is always at disposal, she pointed out, adding that creating a specialized body would not be practical and helpful.
As for “Sea-level rise in relation to international law”, she associated herself with the European Union. The first Issues Paper, despite only being limited to the context of the law of the sea, clearly shows the wide range of legal issues raised by sea-level rise. The immense challenge of sea-level rise, relating to its possible effects on baselines, maritime zones, maritime delimitations and islands, as well as on the exercise of sovereign rights and jurisdiction, underscore the demand for a multi-faceted, in-depth approach and new solutions where legal certainty and predictability should remain one of the primary considerations.
CRAIG J. HAWKE (New Zealand), on “Immunity of State officials from foreign criminal jurisdiction”, noted that draft articles 8 through 12 articulate expectations around the process to be followed when a State is considering exercising criminal jurisdiction over an official of another State. However, the Commission may benefit from further analysis of State practice and dialogue with States about the processes followed in practice. The State of the official does not need to be notified when a criminal investigation is undertaken, but only when proceedings are formally initiated or coercive measures are taken. That involvement of the official’s State is appropriate, given the immunity is for the benefit of the State, not the individual, and the right to make decisions in relation to the immunity rests with the State. However, the forum State is required by international law to respect immunities when they apply regardless of whether the State of the official has formally invoked immunity, he noted.
Turning to “Sea-level rise in relation to international law”, he associated himself with the Pacific Island Forum Members and pointed out that maritime zones, and the resource rights that come with them, are essential to Pacific countries’ economies, identities, and ways of life. Recalling that the International Law Commission encouraged States to come forward with views and examples of State practice, he reported that the Pacific Islands Forum Leaders issued the Declaration on Preserving Maritime Zones in the Face of Climate Change-Related Sea-Level-Rise. The Declaration sets out the region’s collective position on how the Convention on the Law of the Sea’s rules on maritime zones should apply in the situation of climate change-related sea-level rise and promotes the principles of legal stability and certainty over maritime zones.
MOHAN PIERIS (Sri Lanka), noting that the topic of “Immunity of State officials from foreign criminal jurisdiction” remains a contentious issue, detailed the fraught history of a temporary draft article pertaining to the functional immunity of State actors proposed in 2017. The academic point of view on immunity and responsibility is that, while the laws of war bind both States and individuals, breaches committed under Government orders are considered acts of States ‑ not the individual concerned ‑ and give rise to State responsibility alone. As the International Court of Justice has explained, “immunity is one thing and responsibility another”. Separating procedural immunity from substantive responsibility permits a situation in which State agents are responsible for crimes committed in their official capacity even though they remain immune from criminal prosecution in foreign courts. The debate over the logical incompatibility of substantive criminal responsibility and procedural immunity has no end in sight, he added.
Turning to the subject of “Sea-level rise in relation to international law”, he said that ‑ while rising sea levels are a growing concern for States ‑ small island developing States stand on the front line, as their citizens are displaced and their food, water and security suffer. One potential approach ‑ that of fixed maritime baselines ‑ would require States to delineate the outer limits of their maritime jurisdictions, which would remain static despite sea-level rise. He suggested that the Commission examine whether treaties ‑ such as the Convention on the Law of the Sea ‑ can be modified by mutual consent or subsequent State practice. In that regard, the practice of small island developing States is to prefer the fixed-baseline approach. He further noted that changes in international law are considered when interpreting treaties, citing eventual State acceptance of the concept of exclusive economic zones.
MERJE MÄGI (Estonia), speaking on “Immunity of State officials from foreign criminal jurisdiction”, noted that a dispute settlement clause would only be relevant if the draft articles were intended to become a treaty. As draft article 17 is also linked to other draft articles, in particular article 13 (consultation) and article 15 (exchange of information), their interaction with draft article 17 could also be examined. Thus, she said, she agreed with the need to stick to the traditional means of dispute settlement as Estonia does not see a need for the creation of a possible new separate body.
Turning to the topic of “Sea-level rise in relation to international law”, she associated herself with the European Union and expressed support for the idea to stop updating notifications regarding the baselines and outer limits of maritime zones measured from the baselines in order to preserve States’ entitlements following negative effects of sea-level rise. As for the principle of clausula rebus sic stantibus, she said that if the principle would apply in the case of sea-level rise, it would require States to negotiate the maritime boundaries again, which would lead to changing rights and obligations in international relations and bring instability into the relations. Hence, she concurred with the conclusion that the maritime delimitations must be stable and definitive to ensure a peaceful relationship between the States concerned in the long term.
BRIAN PATRICK FLYNN (Ireland), addressing “Immunity of State officials from foreign criminal jurisdiction”, said her country supports the inclusion of a “without prejudice” provision in article 18 regarding the relationship of these articles with the rules governing international criminal courts and tribunals. Further, a dispute settlement mechanism could potentially form part of the “safeguards aimed at protecting the stability of international relations and avoiding political and abusive prosecutions”. Regarding the future direction of the Commission’s work, he noted that several draft articles and commentaries have not yet been adopted and remain pending in the Drafting Committee. Voicing concern that the Commission is divided on the adoption of article 7, she said further information on practice relating specifically to the non-application of immunity would be helpful.
Turning to “Sea-level rise in relation to international law”, she said the normal baseline in Ireland is the low waterline along the coast, as marked on maritime charts prescribed by law for this purpose. The normal baseline is ambulatory in that it may move landward or seaward depending on a variety of factors, including coastal erosion and land reclamation. The Co-Chairs have made several preliminary observations in their first Issues Paper on this issue, she noted, but they have not had the benefit of information on relevant practice and law on baselines, hydrographic charts and deposits from a large number of Member States, which is necessary before any definitive conclusions can be drawn. Many of the measures that will be taken in response to sea-level rise, or that may be necessary to protect the coast against it, are likely to resemble those taken in response to natural phenomena, such as coastal erosion and coastal flooding, she said.
LAUZA ALI (Maldives), associating herself with the Alliance of Small Island States, said that low-lying coastal States and small island States are especially vulnerable to the effects of sea-level rise. They are threatened not only with the loss of territory, but also with the loss of livelihood and critical infrastructure. Adaptation efforts and disaster risk reduction measures can only partially address the threat. “The issue requires international legal solutions that can provide the necessary stability and certainty to impacted States”, she said, noting that it was essential that the Commission continues to examine the practice of States most affected by sea-level rise. The Law of the Sea Convention requires States to deposit their necessary charts with the Secretary-General. However, it does not appear to require regular updates to those submissions. Once a State has deposited the relevant charts and maritime zones, baselines and maritime entitlements are fixed and cannot be altered by any subsequent physical changes to a State’s geography, as a consequence of sea-level rise. She underlined her agreement with the first Issues Paper which notes that the Convention does not prohibit States from maintaining their previously established baselines and the associated maritime entitlements.
Mr. HOWE (United Kingdom), speaking on “Immunity of State officials from foreign criminal jurisdiction”, welcomed the measured way in which the Commission is approaching the sensitive topic. Any proposals the Commission makes in relation to procedural requirements must respect and be capable of application across diverse national legal systems, he said, highlighting paragraph 5 of draft article 11 on the irrevocability of waiver of immunity. Noting the dearth of State practice in this area, he cautioned against making an assumption that, just because States do not regularly revoke waivers of immunity, there must be an absolute rule against such revocations. Given the importance of legal certainty, the commentary must provide a full explanation of the purpose and meaning of any text the Commission adopts, he said.
Stressing the importance of the consideration of the topic “Sea-level rise in relation to international law”, he thanked the members of the Study Group for their discussions which they set out in the report. He looked forward to considering the results of their deliberations on the issues of statehood and protection of persons affected by sea-level rise.
JANE J. CHIGIYAL (Federated States of Micronesia), associating herself with the Alliance of Small Island States, the Pacific Islands Forum and the Pacific Small Island Developing States, focused on the topic “Sea-level rise in relation to international law”. She emphasized the need to maintain maritime zones without reduction — as well as the rights and entitlements that flow from them — regardless of climate change-related sea-level rise. This stance is at the core of the Declaration on Preserving Maritime Zones in the Face of Climate Change-related Sea‑level Rise, endorsed by the leaders of the Pacific Islands Forum in August. The preservation of maritime zones and related rights represents a vital exercise of island countries’ rights to permanent sovereignty over their natural resources, for the sake of national development and survival. She also said she was interested to hear more about the reference to a continuum of intermediate possibilities between an ambulatory approach and one based on permanence, as suggested by members of the Study Group, as well as about the latter’s consideration of the principles of equity, good faith and permanent sovereignty over natural resources.
UTFI SHEIKH GHAZALI (Malaysia), speaking on “Immunity of State officials from foreign criminal jurisdiction” said that draft article 17 emphasized that the suspension of national proceedings, which is pending an international dispute settlement on the matter, would be particularly deferential to the State of the official. With respect to paragraph 2, he said Malaysia agrees with the Special Rapporteur that having a time limit would be beneficial as a guide to avoid any delays to the dispute settlement process. Considering the sensitivities and characteristics of the issue of immunity, and to have a clearer perspective on the most appropriate time limit for that draft article, he proposed that the Special Rapporteur conduct an in-depth study on the possible pros and cons of both a 6-month time limit and a 12-month time limit for further deliberation.
Turning to the topic, “Sea-level rise in relation to international law”, he recalled the mandate of the Study Group and urged States to proceed cautiously, so as not to modify existing international law, in particular the Convention on the Law of the Sea. He highlighted that reclamation activities may have the effect of altering a State’s maritime space. Similarly, sea-level rise also poses risks and challenges to the law of the sea, including possible legal effects on the outer limits of a State’s maritime space. Although both sea-level rise and reclamation activities pose possibly similar effects on a State’s maritime space, both activities should be carefully distinguished to prevent any State from taking advantage and enlarging its maritime space under the pretext of sea-level rise. Maritime baselines, limits and boundaries should be fixed in perpetuity regardless of sea-level rise, he said.