Sixth Committee Begins International Law Commission Third Cluster Review, Debating General Principles of Law, Replacement Language for ‘Civilized Nations’
Speakers, Concluding Second Cluster of Topics, Urgently Call for Action to Combat Rising Sea Levels, Prevent Dire Consequences
Concluding the second cluster of topics from the International Law Commission report, the Sixth Committee (Legal) today took up the third and final cluster, with delegates welcoming the Special Rapporteur’s decision to replace “civilized nations” in the draft articles on “General Principles of Law”.
While delegates agreed that the starting point for the Commission’s consideration of this topic is article 38 (1)(c) of the Statute of the International Court of Justice, they also commented on the Commission’s decision to not transfer the term “civilized nations” in that paragraph into draft conclusion 2 on recognition.
Sierra Leone’s representative underscored that the term is anachronistic, and not reflective of the present nature of the international community. The phrase “community of nations”, already employed in the widely accepted International Covenant on Civil and Political Rights, should be used in the Commission’s work as well as throughout the United Nations system, he said.
Austria’s delegate also voiced agreement that the term “civilized nations” in draft conclusion 2 should be replaced, but foregrounded “international community” as the replacement. Spotlighting “community of nations”, he noted that the term “nation” has different meanings. Citing the Max Planck Encyclopaedia of International Law, he said: “The notion of nation is decidedly unclear, disputed, and politically sensitive.”
South Africa’s delegate welcomed the references to the “international community” and the “community of nations” and called on the Commission to continue to explore the most accurate terminology without modifying the scope or content of article 38, paragraph 1(c). That article was intended to guide States and judicial forums to find law where law may be sought with difficulty, she pointed out.
The representative of the United States expressed concern about the potential ambiguity introduced by the proposed language “recognized by [the community of nations]” in draft conclusion 2, noting that “recognized by States” would provide better clarity for States, courts and tribunals as they apply the concept in practice. The Commission should continue focusing on the need for recognition by States, when drawing conclusions about the identification of general principles of law, he said.
As the Committee concluded its debate on the second cluster of topics from the International Law Commission’s report, which includes “Sea‑level rise in relation to international law”, it heard urgent calls for action from several countries whose economies and cultures are in danger from that phenomenon. (For background, see Press Release GA/L/3648).
Tuvalu, with an average land elevation of no more than two metres above sea level, is extremely affected by rising sea levels, that country’s delegate pointed out. Highlighting a new initiative spearheaded by her country, to protect the Statehood of small atoll nations facing existential threats from sea‑level rise, she also called attention to the Pacific Islands Forum Declaration on Preserving Maritime Zones in the face of Climate Change‑related Sea‑level rise.
The representative of Costa Rica said her country possesses territorial waters 11 times the size of its territorial land. Rising sea levels will have serious consequences, including the loss of beaches and fisheries, the introduction of saline into aquifers, the flooding of urban areas and an increase in disease. She underlined the need to begin work at the national and regional levels to build resilience in communities and find solutions “here and now, together”.
However, the representative of India, while highlighting the complex and legal issues and acknowledging the existential threat posed by rising sea levels, especially for small island developing States, stressed that discussing this issue in other United Nations bodies, such as the Security Council, by arbitrarily linking the issue to international peace and security is totally uncalled for.
Following the conclusion of the second cluster of topics, Concepción Escobar Hernández (Spain), Special Rapporteur on the topic “Immunity of State officials from foreign criminal jurisdiction” and Nilüfer Oral (Turkey), Co-Chair of the Study Group on “Sea-level rise in relation to international law” took the floor to thank delegates for their comments and briefly describe their process of moving forward on their related topics.
Also speaking today were the representatives of the Philippines, Colombia, Holy See, Denmark (also for Finland, Iceland, Norway and Sweden), Egypt, Belarus, Australia, Portugal, China, Israel Greece, New Zealand, El Salvador, Mexico and Chile.
The Sixth Committee will next meet at 10 a.m. on Wednesday, 3 November, to continue its consideration of the third cluster of topics from the report of the International Law Commission.
Statements on Cluster 2
LAINGANE ITALELI TALIA (Tuvalu), commenting on “Sea-level rise in relation to international law”, recalled that, as a country with an average land elevation of no more than two meters above sea level, Tuvalu is extremely affected by rising sea levels’ adverse impacts upon deteriorating marine and coastal environments, and more destructive storm surges and natural disasters. As such, her country is spearheading a new initiative, advanced by likeminded countries, in an effort to protect the Statehood of small atoll nations facing existential threats from sea-level rise, and to preserve the sovereignty, rights and heritage of affected nations and their populations. The recently endorsed Pacific Islands Forum Declaration on Preserving Maritime Zones in the face of Climate Change-related Sea-level rise is intended as a formal statement of Forum Members’ view on how the Law of the Sea Convention rules on maritime zones apply in the situation of climate change-related sea-level rise.
KAJAL BHAT (India), noting the complexity and controversial nature of the topic of “Immunity of State officials from foreign criminal jurisdiction”, said some of its fundamental aspects are without the benefit of significant State practice. The Commission needs to overcome the divergent views of its members on draft article 7 before completing its second reading of the topic. She called for diligence and prudence in deciding whether the focus should be on the codification aspect or progressive development of international law. Any system, if not agreed upon, would be likely to harm inter–State relations and also undermine the very objective of ending impunity of most serious international crimes, she cautioned.
Commenting on “Sea-level rise in relation to international law”, she highlighted the immense challenge of understanding complex legal and technical issues, without losing sight of their human dimension. Sea-level rise represents an existential crisis for small island developing States, she said, adding that the maritime zones, allocated under the United Nations Convention on the Law of the Sea, are central to their economies and food security, as well as their unique cultures and livelihoods. Discussing this issue in other United Nations bodies, such as the Security Council, by arbitrarily linking the issue to international peace and security is totally uncalled for, she stressed.
ANA LORENA VILLALOBOS BRENES (Costa Rica) highlighted the urgent importance of the issue of “Sea‑level rise in relation to international law” to her country, which possesses territorial waters 11 times the size of its territorial land. Rising sea levels will have consequences for Costa Rica, including the loss of beaches and fisheries, the introduction of saline into aquifers, the flooding of urban areas and an increase in disease. Against this backdrop, she stressed the need to begin work at the national and regional levels to build resilience in communities and find solutions “here and now, together”. The general legal framework established by the Convention on the Law of the Sea must be maintained, along with the principles of stability, security, certainty and predictability. She added that the Commission’s Study Group should account for international conventions, customary law and international jurisprudence, such as the ruling of the International Court of Justice that established the maritime borders between Costa Rica and Nicaragua and the practice of African States in the field of marine delimitation.
AZELA GUERRERO ARUMPAC-MARTE (Philippines), speaking on “Immunity of State officials from foreign criminal jurisdiction”, said that the question of such immunity must be approached from the perspective of respect for the sovereign equality of States and protection of State officials from politically motivated or abusive exercise of criminal jurisdiction. Yet, she emphasized, it must also be balanced against the recognized need to combat impunity for international crimes.
Regarding “Sea-level rise in relation to international law”, she said that, as her country is an archipelagic State with numerous low-lying coastal areas and communities, steady progress of this issue by the Commission, especially as it relates to the United Nations Convention on the Law of the Sea, Statehood, and protection of persons affected by sea-level rise, is urgent and necessary. Noting the work of the Study Group, she said its Co-Chair highlighted the case of an archipelagic State whose existing archipelagic baselines could be impacted by the inundation of small islands or drying reefs, which could lead to potential archipelagic baselines status. She also spotlighted the discussion on the status of islands and rocks under the Convention’s article 121, and the consequences of reclassification as a rock, due to sea-level rise, including as a rock that “cannot sustain human habitation or economic life of their own”. While recognizing significant work done by the Study Group, she underscored that these questions need further consideration by States. She also cautioned against inference in favour of ambulatory baselines, absent a showing of State practice and opinio juris on the matter. While commenting that the Commission is an independent subsidiary body of the General Assembly, she pointed out that the Law of the Sea Convention comprehensively allocates rights to maritime areas.
LUCIA TERESA SOLANO RAMIREZ (Colombia), on “Immunity of State officials from foreign criminal jurisdiction”, noted that the Commission has considered a variety of questions ranging from international criminal tribunals to a mechanism for solving disputes between the forum State and the State of the official as well as practical questions that could arise in trying to determine the application of immunity. Her country is studying the draft articles, she said, highlighting draft article 17, in particular, and choosing between the mechanism proposed and the need to remit to these specific mechanisms.
Turning to “Sea‑level rise in relation to international law”, she said that this is a conversation that cannot be delayed. Voicing gratitude to the Commission for taking up climate change and an increase in sea‑level as a consequence of this, she said it is the greatest challenge facing humanity today. In Colombia, 55 per cent of the population located on the Caribbean coast and 45 per cent of the population on the Pacific Coast will be directly exposed to an increase in sea level before 2050. The only possible way to address these challenges is to do so in a coordinated manner involving the entire United Nations system, she stressed, adding that Columbia will provide the Commission with information relating to its State practice and other relevant data.
GABRIELE CACCIA, Permanent Observer for the Holy See, recalled that immunity of State officials is a crucial, long-standing principle of State sovereignty and international diplomacy that must be respected, in order to ensure the peaceful and friendly relations among States. That immunity flows from the principles of State sovereignty and non-interference in internal affairs, which protects State officials from undue and politically motivated prosecution and facilitates diplomatic relations. Respecting such immunity is a precondition of the orderly conduction of international affairs and for any mediation or peacebuilding efforts.
On the issue of “Sea-level rise in relation to international law”, he noted that sea-level rise is much more than a legal issue, as it continues to impact the daily lives of millions around the world. The International Law Commission has adopted an approach that looks at the issues in a broad manner, while also delineating relevant legal challenges in specific legal areas. The potential impacts of sea-level rise on maritime delimitations, baselines, the jurisdiction and rights of States, the implementation and application of existing treaties, and the continuing discussions on the Biodiversity Beyond National Jurisdiction instrument and the International Seabed Authority code, are complex and evolving legal issues that demand careful study.
CONCEPCIÓN ESCOBAR HERNÁNDEZ (Spain), Special Rapporteur on the topic “Immunity of State officials from foreign criminal jurisdiction”, took note of Member States’ views expressed on this issue, along with the request of certain delegations for the Commission to continue to carefully look at the more controversial draft articles ‑ particularly draft article 7 concerning exceptions.
NILÜFER ORAL (Turkey), Co‑Chair of the Study Group on “Sea‑level rise in relation to international law”, thanked delegations for their comments on this topic, which are important both for assessing the Study Group’s work and providing guidance for its future efforts. Recalling a request for the submission of information relating to State practice in this area, she said such information will greatly assist the Study Group.
Statements on Cluster 3
ESTHER SANDHOLT HANSEN (Denmark), also speaking for Finland, Iceland, Norway and Sweden, said that, in regard to “Succession of States in respect of State responsibility”, she endorsed the approach proposed in the Special Rapporteur’s report. Draft article 7 bis is a particularly necessary component of the five new draft articles, not least because some of the most serious internationally wrongful acts are characterized by their composite character. Pointing to the need for further clarity regarding this draft article, especially concerning the scope of paragraphs 1 and 2, she stated that the work of the Institute of International Law, regarding continuing and composite acts, would provide particularly useful guidance. She also welcomed the Special Rapporteur’s intention to focus his next report on the legal problems arising in situations where there are several successor States, both as injured States and as responsible States. On draft article 9, she noted her slight preference for the “entitlement to invoke responsibility” formulation, noting that State succession is a rare occurrence with a limited availability to State practice. Against that backdrop, she encouraged the Commission to continue to follow a prudent approach and take the time that is needed for a high-quality outcome.
MICHAEL IMRAN KANU (Sierra Leone) on “Succession of States in respect of State responsibility”, said that succession to responsibilities is often resolved by political negotiations and is usually fact‑ and context‑specific. Therefore, whatever the Commission’s outcome is on this topic, it should be treated as subsidiary in favour of any agreement entered into by the concerned States. Also spotlighting the limited State practice, he said that the work of the Commission may largely be a form of progressive development. That is not a fundamental issue for his country; the critical factor is transparency as to what is progressive development and what is codification. Another issue, particularly from the perspective of an African State, is the preferred outcome for this topic. It is unclear whether the Commission will be proposing that States negotiate a treaty in this area or if the draft articles adopted could take “a softer and less ambitious form” of draft guidelines. “Timing is important and transparency is relevant,” he said, adding that the Commission has to be clear on this issue given the methodological consequences for the topic.
Turning to “General Principles of Law”, he expressed agreement with the Special Rapporteur that the starting point is article 38 (1)(c) of the Statute of the International Court of Justice. He also added he agreed that the term “civilized nations” is anachronistic, and not reflective of the present nature of the international community. The phrase “community of nations”, already employed in the widely accepted International Covenant on Civil and Political Rights, should be used in the Commission’s work as well as throughout the United Nations system; “civilized nations” and like terms are to be completely abandoned. The analysis in draft conclusion 4 on identification of general principles of law derived from national legal systems must be wide and representative, covering as many national legal systems as possible. Welcoming the draft conclusion adopted in step one of the two‑step analysis ‑ “the existence of a principle common to the various legal systems of the world” ‑ he said the term “the various legal systems of the world” is inclusive and broad, covering the variety and diversity of national legal systems of the world.
AHMED ABDELAZIZ AHMED ELGHARIB (Egypt), speaking on the topic of “Succession of States in respect of State responsibility”, concurred with the general considerations set out in the Special Rapporteur’s fourth report, including those concerning the draft articles’ complementary nature. On the tabula rasa rule and automatic succession as a general rule, he supported the need to explicitly set out the status of these two rules vis-à-vis international customary law. Further effort must also be dedicated to adjust or simplify the draft articles’ wording to avoid ambiguity. The Commission should examine the criteria present in draft articles 16, 17, 18 and 19.
In regard to “General Principles of Law”, he expressed his support for replacing the term “civilized nations” in article 38 of the Statute of the International Court of Justice with a synonym to better reflect the present international situation. He also concurred with the need to adjust concepts and definitions to avoid any ambiguity, along with the need to distinguish between general principles of law and other principles — such as international customary law and peremptory norms. To this end, he aligned himself with Sierra Leone’s statement.
PAVEL EVSEENKO (Belarus), regarding “Succession of States in respect of State Responsibility”, said that he advocates a prudent approach. It is important to account for all factors and this casts out the possibility of uniform rules in this situation. Questions of legal succession of State responsibility are solved on an ad hoc basis. He concurred with the commentary on draft article 7 and added his support for draft article 9, which considers the possibility of achieving an agreement of predecessor and injured States.
Turning to “General Principles of Law”, he said that its definition is anchored in the presence of general principles regarding legal systems worldwide with respect to the system of international law. He said that he expects positive results in this area, in light of the need to maintain the consensus on the scope and methodology for the work of the Commission. In that regard, his delegation stands in constructive cooperation on this issue and looks forward to fruitful work, he said.
Ms. KEEN (Australia), speaking on “General Principles of Law”, said, among other comments, that the Commission needs to clarify how the terminology used in the draft conclusions interacts with the draft conclusions on “Identification of customary international law”. For example, draft conclusion 5(2) requires that to identify a general principle of law, a comparative analysis must be “wide and representative”. This is similar to the requirement in the draft conclusions on customary international law that State practice must be “widespread and representative”. Consistent terms should be used across the two sets of draft conclusions where appropriate, she suggested, recommending the commentaries clearly explain the different terminology used. A definition of terms would also enhance the draft conclusions, including a definition of “fundamental principles of international law”, as well as “conventional international law”. Further, the Commission should be clear which aspects of the draft conclusions represent the codification of existing international law and which parts represent the progressive development of international law. The Commission should also clarify how general principles of law, derived from the international legal system, can be distinguished from other sources of international law, such as customary international law or treaties.
MATHU JOYINI (South Africa), speaking on “General Principles of Law”, welcomed the adoption of the commentary to draft conclusions 1, 2, and 4 and references to the “international community” and the “community of nations” as more appropriate. The Commission should continue to explore the most accurate terminology without modifying the scope or content of article 38, paragraph 1(c) of the Statute of the International Court of Justice. She also said she regretted that the distinction between general principles of law formed within the international legal system and customary international law or conventional international law has not been adequately explored. On the use of domestic law in determining general principles of law, she said that the duty of international tribunals is to regard any features of terminology which are reminiscent of the rule and institutions of private law as an indication of policy and principles rather than as direct importing of these rules and institutions. Article 38, paragraph 1(c) was intended to guide States and judicial forums in finding law where it was anticipated that law may be sought with difficulty. One of the primary tasks of a judicial organ applying international law would be to determine the international law applicable in the case. Therefore, that judicial organ should not be relegated to the shadows of States in the present endeavours of the Commission, she stressed.
SUSANA VAZ PATTO (Portugal) speaking on “Succession of States in respect of State responsibility”, said that her delegation welcomes the five new draft articles in the report, addressing the impact of succession of States on forms of responsibility, including legal remedies. State practice on this matter is diverse, context-specific, and sensitive. It does not offer enough basis for affirming the existence of a general rule, in connection with State succession. The draft articles on succession of States in matters of State responsibility should be of a subsidiary nature and that priority should be given to agreements between the concerned States. The commentaries to these draft articles should bring added value by including examples of succession agreements between States, as well as model-clauses to be used as a basis for negotiation of agreements on succession, with regards to State responsibility. This is without prejudice to the need of being cautious in inferring general conclusions and principles from particular instruments and practices.
Focusing on “General Principles of Law”, she noted that this topic gives the Commission a chance for complementing its existing work on other sources of international law and for providing added guidance on the nature, identification, and application of the general principles of law, as well as on their relationship with other sources of international law. She welcomed the discussions at the Commission in this session that have resulted in provisionally adopting draft conclusions 1, 2 and 4 and their respective commentaries. These elements constitute a solid first step for a new outlook on this important source of international law, showcasing the Commission’s fundamental role as an active interpreter and guiding body. Portugal looks forward to the next report by the Special Rapporteur, which will focus on the functions of general principles of law and their relationship with other sources of international law. In that study, establishing a hierarchy between the several sources of international law should be avoided.
XU CHI (China), on “Succession of States in respect of State responsibility”, noted that the Special Rapporteur has taken stock of some State practices in this field. However, these State practices are limited in number and each one of them has its own special political background. Therefore, he pointed out, they cannot be considered as reflecting the universal practice and the opinio juris of each State. Stressing that the study on this topic is highly theoretical, he said the final form of the Commission’s work on this topic should be draft guidelines or presented as an analytical report.
On “General Principles of Law”, he noted that when the Commission adopted draft conclusion 2, the wording “civilized nations” in the original text was changed to “community of nations”. The new wording is conducive to safeguarding the principles of sovereign equality and equity, he said. He also noted that draft conclusion 5 mentions that to determine the existence of a principle common to the principal legal systems of the world, a comparative analysis of national legal systems is required. The Statute of the International Court of Justice lists sources of international law, he said, adding that the Commission should further emphasize in the commentary of that draft article that legal principles recognized by only a few countries or group of countries shall not be considered to be principles common to the principal legal systems of the world.
JULIAN SIMCOCK (United States), on “Succession of States in respect of State responsibility”, noting that draft guidelines or principles may be the more appropriate form for the topic, as supported by the substance of the initial draft articles. Language provisionally adopted with respect to draft articles 10, 10 bis para.1, and 11 raises similar concerns. Language that two or more States “shall agree” on how to address an injury appears to be binding, but it is unclear what that legal obligation entails in practice. In that context, he questioned what the legal consequence of a breach of that obligation would be. He went on to express concern that the draft articles would be improved by avoiding controversial positions or unsettled areas of law that do not need to be addressed in the context of State succession, in respect of State responsibility.
Turning to “General Principles of Law”, he said he shared concerns raised by some members of the Commission about the potential ambiguity introduced by the proposed language “recognized by [the community of nations]” in draft conclusion 2, noting that “recognized by States” would provide better clarity for States, courts and tribunals as they apply the concept in practice. The Commission should continue focusing on the need for recognition by States, when drawing conclusions about the identification of general principles of law. On draft conclusion 7, he expressed concern that there is insufficient State practice in the international legal system to determine whether a particular principle “formed within the international legal system” may be considered a general principle of law. He also expressed concern about the reliance on decisions of international criminal courts and tribunals in the second report. International criminal law is often sui generis, and caution must be taken when extrapolating from it to other areas of international law or international law generally, he said.
SARAH WEISS MA’UDI (Israel) speaking on “General Principles of Law”, thanked the Special Rapporteur for his first two reports, which provided useful information about this source of international law. General law may be used to fill gaps that may exist in treaty law and customary international law; such use of general principles would be consistent with the practice of the International Court of Justice and the intention of the drafters of the Court’s Statute. She further noted that the employment of general principles of law must also be consistent with the principle of State sovereignty. On draft conclusion 2, the term “civilized nations” is archaic and should be replaced with a more suitable term, such as “community of States” or “community of States as a whole”. Using the term “States” instead of “nations” is more appropriate.
Speaking on "Succession of States in respect of State responsibility", she expressed reservations on the approach used. The Commission is at its best when it takes on topics where there is a well‑developed body of State practice and jurisprudence that require refinement or clarification per the accepted approaches to the progressive development and codification of international law. Therefore, the Commission should choose topics of general international law that are of interest and utility to States and which do not give rise to strong objections. She also expressed concern over the Special Rapporteur’s approach in his fourth report, according to which "the requirement of general practice as an element of identification of customary international law cannot be applied too strictly”. She urged the Commission to uphold the accepted methodology for the determination of rules of customary international law, which was only recently embodied in the Commission’s conclusions on that topic. The proposed draft articles are not appropriate for serving as a basis of a future convention, she said, suggesting that the current form of draft guidelines may be more appropriate in this particular context.
MICHAEL STELLAKATOS LOVERDOS (Greece), on the topic “Succession of States in respect of State responsibility”, underlined the delicate balance between the principle of the predecessor State continuing to be obligated to provide reparation for its illegal act and the legal and material reality arising from the succession, which argues for a transfer of the above obligation to the successor State. Given that draft articles 16 through 19 aim to provide normative guidance, a cross-reference, and rephrasing of the second paragraph of article 9 would be appropriate. She expressed support for the proposal that restitution may be requested from the successor State in cases where only the latter is able to make such restitution. Those limited cases — where there is a “clear direct link”, either between the consequences of the act and the territory, the population of the successor State, or where the author of the wrongful act was of an organ of the predecessor State which became an organ of the successor State, and the latter continues to benefit from the consequences of such act — might warrant the provision of compensation based on the concept of unjust enrichment, she said.
Turning to the topic of “General principles of law”, she said it needs careful and extensive treatment. The success of the final outcome will depend on whether the Commission is able to find the right balance, in order to avoid general principles of law being used as a shortcut to identifying norms of international law, where it is not possible to identify any applicable rules of treaty or customary law. Regarding the second category, she expressed doubt about the existence of general principles of law formed within the international legal system as an autonomous source of international law, separate from customary international law. Within that context, she underscored that the Commission’s work on that topic should primarily be based on relevant State practice and jurisprudence, while also carefully considering the travaux préparatoires of article 38 of the Statute of the International Court of Justice.
LUKE ROUGHTON (New Zealand), addressing “Succession of States in respect of State responsibility”, welcomed the Special Rapporteur’s report and commended its detailing of problems arising in relation to different forms of reparation. He also welcomed the Special Rapporteur’s proposal to address in his next report the legal problems arising in situations where there are several successor States and issues of shared responsibility. The issue would benefit from commentaries clarifying when the draft articles represent progressive development, rather than the codification, of international law, since there is little State practice in some areas.
Speaking on “General Principles of Law”, he commended the Special Rapporteur for his second report, expressing support for its characterisation of the methodology for the identification of general principles of law derived from national legal systems. On the second category of general principles of law proposed in the Special Rapporteur’s first report, he said that he considers that general principles of law formed within the international legal system and rules of customary international law must be clearly distinguished. He welcomed the Special Rapporteur’s proposal for his third report to address the functions of general principles of law and their relationship with other sources of law.
LIGIA LORENA FLORES SOTO (El Salvador), on “Succession of States in respect of State responsibility”, said she supported the subsidiary nature of the Commission’s draft articles which affords due respect to corresponding principles of treaty law, such as good faith and pacta sunt servanda. She also noted support for the Commission’s work in exercise of its function to progressively develop international law, adding that such efforts will always present certain difficulties. As such, it would be helpful if the Commission, when it formulated commentaries to draft articles, made clear which relate to current State practice and which relate to the progressive development of international law. She also highlighted the importance of maintaining coherence between the draft articles’ terminology and content, and the Commission’s prior work.
In regard to “General Principles of Law”, she said such principles can become an important element for the peaceful coexistence between peoples, as their specification and application within the international legal order can condense legal rules and concepts into simple forms. Stressing the importance of preserving the autonomous nature of these principles — which international jurisprudence reflects — she cautioned against establishing a hierarchy of sources of international law. Rather, varied sources of international law enjoy a dynamic interrelationship, with the exception of jus cogens rules. She also added her support for abandoning the term “civilized nations” in article 38 of the Statute of the International Court of Justice.
HELMUT TICHY (Austria), on the “Succession of States in respect of State responsibility”, noted that the Special Rapporteur proposed four new draft articles, none of which were discussed in the Drafting Committee. He further said he does not support the premise underlying the fourth report that there may be situations where the responsibility or the “rights and obligations arising from responsibility” may be transferred from a predecessor State to a successor State. On draft article 7 bis, he said he is not convinced that the asserted succession rule in paragraph 2 is supported by State practice, while draft articles 16 to 19 continue to contain the ambiguous wording. He underscored that matters concerning succession relating to State responsibility were fundamentally different from issues concerning succession to treaties, assets, and debts. Turning to the three draft articles provisionally adopted by the Commission, he added his support for article 7 and 9, while voicing concerns about draft article 9, paragraph 2.
Regarding “General Principles of Law,” he said that the term “civilized nations” should be replaced with “international community” in draft conclusion 2. Spotlighting “community of nations”, he noted that the term “nation” has different meanings. Citing the Max Planck Encyclopaedia of International Law, he said: “The notion of nation is decidedly unclear, disputed, and politically sensitive.” He said that, in regard to draft conclusion 7 - which addresses the question of general principles of law formed within the international legal system ‑ he did not reject such a notion. However, it is doubtful whether such principles could be identified as easily as the draft text seems to suggest. He noted his hesitancy to ascertain general principles of law on the basis of wide recognition in treaties or other instruments, of underlying general rules of treaty or customary international law, or of being inherent in the basic features and fundamental requirements of the international legal system. As well, confusion could occur in relation to the difference between “fundamental principles of international law” of draft conclusion 6 and “general principles of law formed within the international legal system” of draft conclusion 7. An analysis of this issue in the commentary would be useful.
PABLO ADRIÁN ARROCHA OLABUENAGA (Mexico) said that, with regard to “Succession of States in respect of State responsibility”, political processes mean that an analysis of this topic has practical implications and is not reserved to the academic sphere. The draft articles show that illegal acts committed by States during processes of succession should not go unpunished. There should be clear rules, not only for States that are committing internationally illegally acts, but also for those that suffer injury and have the right to reparations. The draft articles take up principles that are well-established, for example, with regard to the guarantees of non-repetition of illegal acts. As the Commission has noted previously, it is important to not give legal advantages to States that contravene international law.
Turning to “General Principles of Law”, he said that the contributions of the Commission will be of great help in a topic that is “the cement of international law”, although it does turn up some analytical difficulties. He welcomed the inclusion of a draft conclusion stressing the importance of a broad analysis, that includes different legal families and regions of the world, in order to determine the existence of a general principle of law. The reports of the Special Rapporteur reflect a broad study of the practice of States, as well as relevant jurisprudence and doctrine.
Mr. DEVILLAINE GOMEZ (Chile), on “General Principles of Law”, said that there is general agreement that the point of departure for the work of the Commission should be article 38, paragraph 1(c) of the Statute of the International Court of Justice, which should be analysed in the light of the practice of States and of jurisprudence. Also noting that both the Commission as well as the Sixth Committee had agreed that the expression “civilized nations”, which is contained therein, was an anachronistic expression and should be avoided, he voiced support for the use of the expression “international community”, which is based on article 15, paragraph 2 of the International Pact on Civil and Political Rights. Highlighting draft conclusion 5, on determination of the existence of a common principle to the legal systems of the world, he said that the comparative analysis to determine the existence of such a principle should be broad and representative, and should address the greatest possible number of national legal systems.