In Annual Visit to Sixth Committee, International Court of Justice President Stresses Working Methods Ensure ‘World Court’ Not Only in Name but in Fact
Delegates Take Up Sea‑Level Rise, Immunity of State Officials, as International Law Commission Second Cluster Review Begins
As part of its annual tradition, the Sixth Committee (Legal) welcomed the President of the International Court of Justice today, who detailed the organ’s working methods designed to persuade States to place their trust in this “world court”.
Joan E. Donoghue first provided an overview of the institution of judges ad hoc, which allows States party to a proceeding to appoint a national as a judge ad hoc if such nationality is lacking on the bench. This allows each party to a case to be assured that there is someone in the room during the Court’s private deliberations who is especially attentive to that State’s interests and equities. Recent practice confirms the value of such judges, she noted, also encouraging those present, when considering such appointments, not to overlook women and those hailing from developing countries.
She also spotlighted the Court’s role as one of first instance, noting that, in evidentiary matters, it favours neither the traditions of common nor civil law. Its approach to questions of evidence largely reflects a desire to welcome approaches from both, leaving the Court free to develop its practices over time. Further, in response to criticism as to the speed of the Court’s deliberative process, she stressed that, for the Court to be a world court “not only in name, but also in fact”, it is essential that all its members be given sufficient opportunity to exchange, debate and adjust their views based on those of colleagues.
Following that presentation, delegates commenced consideration of Cluster 2 of the International Law Commission’s report relating to the topic of “Sea‑level rise in relation to international law”, as delegates considered the appropriate weight to accord to the 1982 United Nations Convention on the Law of the Sea in light of the lack of legal precedent in this area.
The representative of Iceland, also speaking for Denmark, Finland, Norway and Sweden, stressed that, while there is yet no record of situations where the territory of a State has been completely submerged or rendered uninhabitable, “such a situation cannot be considered a distant theoretical concern”. She added that any work in this area must fully preserve the integrity of the Convention.
Malaysia’s representative also emphasized that States must not modify existing international law, particularly the Convention. Any future obligations to protect affected persons should be on a case-by-case basis and should reflect the principle of common‑but‑differentiated responsibility, the national capacities of non‑affected States and humanitarian principles, she said.
Regarding such protection, the representative of the Philippines called for the further development of existing international legal frameworks, while also highlighting the vulnerability of States in South‑East Asia. She also stressed that the Law of the Sea Convention must be the legal framework for all activities concerning oceans and seas.
The representative of El Salvador, however, expressed concern over affording centrality to the Convention in work in this area. The protection of human dignity ‑ which should lie at the heart of all political measures and norms applied in this regard ‑ is a universal obligation that goes beyond examining the law of the sea and jurisdictional maritime areas, she stressed.
The representative of the Bahamas, speaking for the Caribbean Community (CARICOM), similarly urged the Commission to avoid any unnecessary narrowing of its scope of topics on this subject, also appealing to the Commission to act with urgency on this matter. “The repercussions and effects facing small island developing States can no longer be diluted, ignored or set aside as a problem for future generations,” he stressed.
Speakers also took up the Commission’s draft articles on “Immunity of State officials from foreign criminal jurisdiction”, highlighting the need to balance various interests in a manner consistent with State practice.
Cuba’s representative underlined the need to strike such a balance between essential principles and the protection of civil servants and State officials against politically motivated uses of criminal jurisdiction. He emphasized the need to consider national legislation in this regard, which determines who enjoys immunity and the scope of the same.
On that point, the representative of Germany agreed that States are best suited to balance the effective prosecution of international crimes and stability in international relations. She also called on the Commission to clarify the applicability of certain procedural provisions in the draft articles, noting that the same will only find broad acceptance if they reflect different domestic legal systems and such systems’ specific approaches towards balance.
Iran’s representative, while stressing that immunity is not equivalent to impunity, said that proposals to limit the scope of immunity in favour of accountability for State officials should benefit from representative, consistent State practice. The Commission must proceed cautiously, he added, spotlighting the sensitive nature of immunity as a direct consequence of the principle of sovereignty.
The representative of Sierra Leone noted that the draft article providing for the transfer of criminal proceedings provides an important safeguard that bears in mind a balance of interests between the forum State and the State of the official. He added that, regardless of whether they constitute codification or progressive development, the draft articles provide welcome clarity regarding some of the worst crimes known to international law and should enhance the possibility of justice for victims.
Also speaking were representatives of Singapore, Poland, Slovenia, China, India, Italy, Belarus, Hungary, United States, Romania, Austria, Mexico, Brazil, Slovakia, Estonia, Armenia, Australia, Greece, Portugal, Ireland and the Netherlands, along with a representative of the European Union, in its capacity as observer.
The representatives of Colombia, Egypt, Canada, Greece and Armenia spoke during the interactive dialogue with the President of the International Court of Justice. The Chair of the Sixth Committee also spoke.
The Sixth Committee will next meet at 10:00 a.m. on Tuesday, 1 November, to continue its consideration of the second cluster of topics from the International Law Commission’s report on the work of its seventy‑third session.
International Court of Justice
PEDRO COMISSÁRIO AFONSO (Mozambique), Chair of the Sixth Committee, welcomed Joan Donoghue, President of the International Court of Justice, along with Judge Hilary Charlesworth and Philippe Gautier, Registrar of the Court, noting that it is an annual tradition for the Court’s President to meet with the Sixth Committee. The International Court of Justice is the principal judicial organ of the United Nations, he said. Its activities are essential to the fulfilment of one of the primary purposes of the Organization, which is “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace”. In that regard, he stressed that the jurisprudence of the Court has also been, and continues to be, of utmost importance for the progressive development of international law and its codification.
JOAN E. DONOGHUE, President of the International Court of Justice, said that the President’s yearly remarks to the Sixth Committee stand out as an opportunity for discussion with experts who advise States on public international law and dispute settlement. Recalling her previous experience as a foreign ministry lawyer, she said that now, after twelve years inside the Court, she has gained a deeper understanding of the Court’s work and procedures.
Turning first to the institution of the judge ad hoc, she noted that, under article 31 of the Statute of the Permanent Court of International Justice, a State party to a case may choose a judge ad hoc whenever the Court does not include a judge of that State’s nationality on the bench. That judge then takes part in decisions in the case in complete equality with the 15 members of the Court. The International Court of Justice inherited this institution from its predecessor. Recalling the drafting history of that statute, she said it aims to achieve three objectives: (1) that the judge would contribute to the Court specialized knowledge of the appointing State’s legal system; (2) that the possibility of such appointments would maintain equality between the parties in cases where only one had a national among sitting judges; and (3) that such appointments formed part of the larger goal of persuading States to place their trust in a world court.
Assessing the current relevance of these objectives, she cited court statistics suggesting that, in many cases, appointing States have not attached importance to a judge ad hoc’s expertise in national law. Further, practice suggests that States value the possibility of appointing a judge ad hoc even in cases where no question of equalizing their respective votes arises. On the third objective, she recalled the words of a former judge ad hoc regarding his role, pointing out that the appointment of a judge ad hoc allows each party to a case to be assured that there is somebody in the room during the Court’s private deliberations who is especially attentive to that State’s interests and equities.
Noting that recent practice confirms the value of that assurance, she said that judges ad hoc perform an important role in the Court’s private deliberations, and that the Court as a whole benefits from their appointment. She expressed disappointment, however, that judges ad hoc named by States are, overwhelmingly, nationals of developed countries and, with rare exceptions, men. She therefore encouraged those present, when considering such appointments, not to overlook women and those hailing from developing countries.
Turning to the Court’s often‑overlooked role as a court of first instance, she pointed out that the Court’s pronouncements of law attract interest beyond the parties to a case. However, the attention paid to the outcome of a case and to the Court’s legal pronouncements can obfuscate another important dimension of the Court’s work. Observing that the Court is not one of cassation, charged only with answering questions of law, she pointed out that it is also a court of first instance, performing certain functions akin to national trial courts.
Such national courts of first instance face numerous procedural issues ‑ some significant, others mundane ‑ and also decide questions of fact based on the evidence before them, she continued. While noting that, in many national courts, a single judge decides procedural issues, the Court takes procedural decisions after internal discussions in which the full court participates. On this point, she emphasized that collective decision‑making on procedural questions ensures that the diverse views of all judges are taken into account and helps to build consistent practice over time that draws on such diverse views from many different legal systems.
Another aspect of the Court’s role as one of first instance relates to evidentiary matters, she said. There are significant distinctions between the approaches to questions of proof favoured by courts influenced by common‑law traditions and those that adhere to those of civil law. The Court does not favour either tradition. Its approach to questions of evidence largely reflects a desire to welcome approaches from both, leaving the Court free to develop its practices over time. Detailing the Court’s approach to documentary evidence, witness testimony, burdens and standards of proof and views offered by experts, she noted that approaches to evidence and procedure that may be convincing before certain national first‑instance courts may not be persuasive to members of the Court. When disagreements over evidence are an important aspect of a case, it is crucial for the relevant legal team to be well‑versed in the Court’s practices and case law on evidentiary and procedural matters, as well as its pronouncements on the law.
Turning to the pace of proceedings before the Court, she recalled that, upon her nomination for election to the Court, she was told that she would find such pace leisurely and was encouraged to expedite the same. However, she has come to appreciate that some critiques of the Court “may have been outdated”, while others did not reflect sufficient appreciation for the reasons underpinning certain working methods. Providing an overview of a case’s path from initiation to final judgment ‑ from written pleadings, to hearings, to deliberations and preparation of a judgment ‑ she said that the Court is consistently engaged in the substantive consideration of multiple cases at any one time. Moreover, this consideration exists in parallel with its individual and collective examination of a steady flow of procedural questions in pending cases not yet ready for a hearing. Further, the Court has been faced with a number of requests for the indication of provisional measures and other incidental proceedings, all of which have proved resource‑intensive.
Against that backdrop, she expressed concern that the size of the Court’s Registry has not matched the increase in its workload in recent years. While stressing that it is not her purpose to propose any particular increase to the resources made available to the Registry, she questioned “whether the situation is sustainable”, adding that: “Another solution may be necessary”. Before joining the Court, she was repeatedly told that the Court’s process of deliberation and drafting judgments moved too slowly. While acknowledging that this process could be made more efficient, she stressed that there would be a price to pay for such efficiency. For the International Court of Justice to be a world court “not only in name, but also in fact”, it is essential that all its members be given sufficient opportunities to exchange, debate and adjust their views based on those of colleagues, and that each of them be actively involved in all stages of the decision‑making process, she said.
The floor then opened up to questions for the Justice from delegations about various points of international law and procedure.
The representative of Colombia pointed out that national experts in the area of international law often do not speak enough English or French, which constitutes a setback for them to be able to interact with their colleagues. She asked what can be done in such cases in the countries of the Latin American region, where English and French are not official languages. She also enquired whether Spanish could become an official language of the Court, pointing out the growing number of cases from the region.
Ms. DONOGHUE, responding to the question, acknowledged the difficulty posed by language limitations on States. The Court unfortunately does not have the ability to change its working languages unless and until the Charter of the United Nations is revised, she pointed out. The Court welcomes diversity and endeavours to do its best in helping ad hoc judges upon arrival, she added.
The representative of Egypt asked to what extent the Rules of Procedure of the Court are exhaustive and whether there are any developments that go beyond the remit of the current document. Referring to the civil and common law systems, he also raised a question on harmonization of various legal traditions.
Ms. DONOGHUE reported that there is a Court Statute that is a part of the Charter and the rules that are drafted by the Court itself. Noting that the Statute cannot be changed, she underscored that it does not restrict the Court from making the necessary adjustments. In addition, the Court has a flexibility to revise and update the rules. Below the level of the written rules, she highlighted certain flexibility to make various adjustments.
She also said that she has rarely noticed that civil law vs common law traditions had much of an impact on the differing views during negotiations, except in discussions touching upon mutual legal assistance and extradition, where the domestic legal system was enmeshed.
The representative of Canada asked if the Court should create a special chamber or adopt new procedural innovations in response to the increased use of provisional measures.
Ms. DONOGHUE said that the suggestion would not come from the Court itself but rather from parties. Parties have almost never asked for a chamber, she pointed out, while explaining that the decision of a chamber carries the same weight as a decision of the full Court. The Court simply has to manage the uptick in provisional measures despite consequences for the rest of its work, she said.
The representative of Greece, spotlighting cases where both parties decide not to appoint judges ad hoc, asked whether this has happened often and what role the Court has played in those instances. She also asked whether this is something that the Court favours and if parties rely on the existing composition of the Court.
Ms. DONOGHUE said that neither party is required to name a judge ad hoc, whereas States can simply decide not to do so. However, she highlighted a few cases where the parties agreed between themselves that neither would name a judge ad hoc. Regardless, this does not matter — neither for the Court nor for the parties. The Court welcomes judges ad hoc, appointed by one party or both, and treats them as the equal members of the Court while they are serving on the case, she said.
The representative of Armenia, in spotlighting the Court’s busy workload, asked about that body’s scope for reforms and additional innovations in its working methods.
Ms. DONOGHUE credited the Rules Committee for its continued and energetic work on a range of issues. As with many matters, the Court will not rush into a decision and will undertake a careful examination of the current situation, pros and cons, as well as a comparison of procedures among other elements. The Court has a docket of issues for the Rules Committee’s consideration, which is occasionally modified if the plenary identifies an issue that deserves attention.
Mr. AFONSO, recognizing the impossibility to change the Statute of the Court, asked whether the competence of the Court to international organizations can be considered.
Ms. DONOGHUE said that, in certain situations, competence can be transferred to original economic integration organizations, referring to the European Union (former European Community). She noted that international organizations have an ability under the Statute to make written submissions in cases, but they are not parties, whereas their role is limited.
The representative of Egypt, taking the floor again to follow up on his previous question, asked about the effect of different legal cultures on the Court’s decisions. Is there uniformity in drafting judgements or is this subject to each drafting committee, he wondered.
Ms. DONOGHUE, in providing a brief overview of the process for establishing drafting committees, acknowledged the influences of different legal traditions on drafting styles. The Court, however, has certain established practices. Variations in the preferences and styles of individuals are balanced by the involvement of the entire Court. Since judges provide amendments to drafts, the Court tends to steer towards a form which is expected to receive broad acceptance within that body in terms of both substance and style, she said.
International Law Commission ‑ Statements on Cluster 2
THOMAS RAMOPOULOS, representative of the European Union, in its capacity as observer, spoke on “Sea-level rise in relation to international law” and underscored that the United Nations Convention on the Law of the Sea sets the legal framework within which all activities in the oceans and seas must be carried out. Caution should be exercised regarding the consideration of regional State practices together with the respective opinion juris. Relevant universally applicable provisions and principles need to be applied in a uniform way in all regions in the world. Moreover, the rights of other States — and other actors established outside a particular region — could be unjustifiably affected, like navigational rights and fishing rights without an agreed reciprocal treatment. Therefore, certain possible emerging regional State practices regarding sea level rise should not lead to the recognition of a regional customary law of the sea rule. The Study Group should build on States’ practices. He also highlighted the importance of considering the opinion juris accepted by all the regions of the world before inferring the existence (or not) of an established State practice or opinio juris.
With regard to the revision and stability of the delineation of maritime areas due to the effect of sea level rise on the coastline, he highlighted the principle that “land dominates the sea” as an underlying premise for the attribution of maritime zones. In this respect, baselines remain the basis for the formal establishment of maritime zones. Sea level rise may result in geographical shift of the baselines that have been used for establishing the outer limits of the different maritime zones. The question has been raised as to whether, in these circumstances, States are legally obliged to periodically review and update the charts on which straight baselines are drawn. There is no obligation on States under the Convention to periodically review and update all the charts and coordinates they have drawn (or agreed to) and duly publish in accordance to the relevant provisions in the Convention, he pointed out.
STAN ODUMA SMITH (Bahamas), speaking for the Caribbean Community (CARICOM) and addressing “Sea-level rise in relation to international law”, stressed that global mean sea level rise will result in increased coastal flooding; storm and hurricane surges; and loss of resources, homes, lands and life. “The repercussions and effects facing small island developing States can no longer be diluted, ignored or set aside as a problem for future generations,” he stressed. The Commission should further consider such consequences for statehood, international law protections for affected persons and compensation, among other topics. The examination of mitigation measures must recognize that the characteristics of small island developing States — including limited economies of scale and the need for human, technological and financial support — contribute to mitigation challenges. In responding to the concerns expressed by other States, he urged the Commission to avoid any unnecessary narrowing of its scope of topics. The delegation of Vanuatu will table a draft resolution to the General Assembly requesting the International Court of Justice to provide an advisory opinion on the obligations of States to safeguard the rights of present and future generations in the face of climate change and its adverse effects, he said.
Turning to the “Protection of the environment in relation to armed conflicts”, he emphasized that environmental obligations protect a collective interest and are owed to a wider group of States beyond those involved in armed conflict or occupation. As there is a gap concerning the application of international legal provisions on internal or national conflicts, he encouraged the Commission to address non-international armed conflicts, compensation and questions of responsibility and liability.
He then commended the Commission for increasing its number of women members and assisting developing States on more effective participation through capacity-building. The General Assembly should develop formal internship for developing States, he suggested.
Ms. JOHANSDOTTIR (Iceland), also speaking for Denmark, Finland, Norway and Sweden, on “Immunity of State officials from foreign criminal jurisdiction”, said that the Commission’s draft articles strike a successful balance between the interests of the forum State and the State of the official. The procedural provisions therein are particularly important, as they ensure adequate safeguards for the State of the official, while also observing the interests of the forum State. She also underlined the importance of harmonizing the draft articles with the Rome Statute of the International Criminal Court and the other treaties enumerated in the draft articles’ annex. While the draft articles could constitute the basis for negotiating a treaty on this subject, she noted that most of the draft articles reflect customary international law and are, as such, already binding on States.
Turning to “Sea‑level rise in relation to international law”, she pointed out that small island developing States — home to around 65 million people ‑ are particularly vulnerable to the consequences of sea level rise. Further, low‑lying coastal zones are currently home to almost 700 million — a number projected to reach more than 1 billion by 2050 — and these zones will suffer a significant increase in related risks such as erosion, flooding and salinization. While there is yet no record of situations where the territory of a State has been completely submerged or rendered uninhabitable, “such a situation cannot be considered a distant theoretical concern”, she stressed. The Commission, therefore, can help the international community by reflecting on the basis of international law and generating a dialogue on the possible options and alternatives for States to consider in dealing with the problems associated with sea level rise. However, the integrity of the United Nations Convention on the Law of the Sea must be fully preserved, she added.
DAPHNE HONG (Singapore), addressing “Immunity of State officials from foreign criminal jurisdiction”, commended the Commission on the changes in draft article 1 related to immunity before international criminal tribunals; the obligation in draft article 9 to examine immunity when the forum State becomes aware that the relevant individual may be an official whose immunity may be affected; and the settlement of disputes. Commentaries should clarify that the obligation in draft article 9, paragraph 2 does not preclude necessary and proportionate measures to prevent harm in response to the imminent and unlawful use of force. There should also be further clarification concerning the obligation in draft article 10, paragraph 1 on notifying the State of a foreign official before taking coercive measures against that official, she added.
Turning to “Sea‑level rise in relation to international law”, she joined other small island developing States in underlining the real and existential threat posed by sea‑level rise. A distinction should be drawn between the criteria for the establishment of a State and those for its continued existence. Further, the Commission should examine practical options, potential legal implications and consequences for vulnerable States whose current existence is under threat. She echoed the call for additional evaluations of the applicability of different legal frameworks, soft‑law instruments and principles concerning the protection of persons. “The proposal to separate matters relating to the protection of persons in situ and in displacement may be a sensible way forward,” she added. On the Commission’s procedural aspects, she reiterated the need for it to examine practical options for vulnerable States.
KONRAD MARCINIAK (Poland), addressing “Immunity of State officials from foreign criminal jurisdiction”, expressed doubt about the crimes of aggression being omitted from the catalogue of crimes for which immunity does not apply in draft article 7. The Commission had two arguments for that omission, including that national courts would have to determine the existence of a prior act of aggression by the foreign States, and that there was a special political dimension to that crime since it was committed by political leaders. The same arguments could be applied to crimes against humanity and genocide, he pointed out, adding that “It is difficult to imagine that domestic courts can adjudge the responsibility of representatives of foreign States accused of having committed one of these crimes without directly or indirectly engaging the issue of the responsibility of foreign State.” Furthermore, omitting this crime seems to exclude the right of States that fall victim to aggression to exercise jurisdiction over individuals who have committed that crime against them, even when those persons are not protected by immunity ratione personae.
Turning to “Sea‑level rise in relation to international law”, he said that because the topic can have very practical implications for State practice, there is a need for transparency in the Commission’s work, in particular by distinguishing between lex lata, lex ferenda and policy options. Its study potentially goes well beyond the traditional dichotomy of codification and progressive development, particularly in the context of continuity of Statehood in situations where a State’s territory suffers total inundation ‑ until now a completely unprecedented circumstance. There is no State practice in this respect. It would certainly appear that simply declaring that a State continues to exist, even when its territory is totally and permanently submerged, cannot suffice without some explanation of its future modus operandi. In this context, it is difficult to imagine that such a State could continue to exist without obliging other States to accept some limitations on their own sovereignty in the territorial or functional sphere. Further, there is a need for serious consideration of dividing the topic, due to the fact that the law of the sea and protection of persons pillars seem much more pertinent and demand a more urgent response in terms of proposed solutions than the Statehood pillar.
MARKO RAKOVEC (Slovenia), on “Immunity of State officials from foreign criminal jurisdiction”, underlined the importance of a proper balance which allows for the exercise of criminal jurisdiction and the invoking of individual criminal responsibility of officials of another State while providing the necessary safeguards for international cooperation of States. The draft articles must also ensure the proper administration of justice and a mechanism for the settlement of disputes. In expressing support for draft article 7, he encouraged the Commission to include the crime of aggression. There is considerable merit in examining the criteria supporting the inclusion of crimes under international law on the list beyond the exclusive criteria of an existing treaty, he noted. In addition, draft article 13 should include temporal elements and undertake a broader approach to sources.
Turning to “Sea‑level rise in relation to international law” and associating himself with the European Union, he emphasized the need for enhanced, coordinated and collaborative international cooperation and solidarity. The Commission’s future work must address the gaps in applicable legal frameworks on the protection of affected persons and examine applicable principles including the protection of human dignity. There must be answers which address the status of populations and their territories and protect their human rights and fundamental values, he emphasized.
JIA GUIDE (China), on “Immunity of State officials from foreign criminal jurisdiction”, welcomed the provision of draft article 18, noting that the forum State and the State of the official may settle disputes through negotiation or other peaceful means. This is the most effective means of dispute settlement, and its inclusion will encourage this practice. However, the article also provides that, if such States cannot agree on the interpretation of the draft articles in a reasonable time, the dispute can be referred to the International Court of Justice or other dispute-settlement mechanism at the request of one of the States involved. According to the State-consent principle, States have the right to decide whether to accept compulsory third-party dispute resolution, and he therefore suggested changes to draft article 18 to reflect this. He also took issue with draft article 7 regarding exemptions to immunity ratione materiae and urged the Commission to replace the list of specific exemptions with the phrase “the most serious crimes under international law”.
On “Sea-level rise in relation to international law”, he emphasized that this topic involves the rules of international law from many different fields; relevant State practice is still evolving. Therefore, the Commission should recognize this complexity going forward and improve its working methods. Recalling the Commission’s assertion that it would not propose amendments to existing international law on this topic, he stressed that this subject involves both the interpretation of the United Nations Convention on the Law of the Sea and the vital interests of coastal States. As such, it must be handled prudently to avoid political arguments or fragmentation of rules. He added that, to facilitate consensus, the Commission’s future studies on this topic should not be limited to closed-door meetings of the relevant study group.
Turning to “Succession of States in respect of State responsibility”, he said he agreed with the Commission’s determination that relevant issues on this topic should be resolved through general principles of State responsibility. He also welcomed that the Special Rapporteur adopted delegations’ suggestions that the outcome of work on this topic be draft guidelines, expressing hope that the Commission will elaborate such guidelines with a view to guiding real-world practice. Further, he suggested that background information be added to the commentaries explaining the formation of new States in certain circumstances. Such an addition will enable the Commission to strike a balance between the clean-State principle and the automatic-succession rule.
On “General principles of law”, he agreed with draft conclusion 5’s contemplation of comparative analysis of national legal systems to determine the existence of common principles. However, this should be further clarified to hold that legal principles recognized only by a few countries or groups of countries are not common principles. He also said that determining if a principle of domestic law has been transposed to the international legal system requires the application of stringent criteria that are universally accepted by the international community. In its study, the Commission should avoid using concepts unique to certain countries’ domestic law. He added that the Commission should reverse the order of the paragraphs in draft conclusion 7, relating to determining if a general principle of law has formed in the international legal system, as the current order may lead to misunderstanding.
UMA SEKHER (India), on “Immunity of State officials from foreign criminal jurisdiction”, underscored the need to guarantee respect for the principle of sovereign equality of States, which is the foundation of immunity of State officials. Noting the divergent observations of Member States regarding draft article 7, she recalled that the draft text had been provisionally adopted by recorded vote at the Commission’s sixty-ninth session. However, this year it was adopted without a vote. Therefore, in the final adoption of the article she said that the views of all Commission members should be taken into account towards achieving consensus. Any system, if not agreed, would likely harm inter–State relations and also undermine the very objective of ending impunity for the most serious international crimes. At the same time, she reiterated that the provisions under this area should not be viewed as codifying existing international law in any manner.
Regarding “Sea-level rise in relation to international law”, she said that though the United Nations Convention on the Law of the Sea establishes an effective legal regime for ocean governance, it does not explicitly deal with the impacts of climate change-related sea level rise on maritime zones and the rights and entitlements that flow from them. The challenges posed by this phenomenon for the Convention’s legal order could not be foreseen by the treaty’s drafters. Small island developing States are facing disproportionate challenges to their social and economic development given their small size, remote location, vulnerability to sea level rise and high costs for energy and transportation. It is an existential crisis for them, she pointed out. Their territories and the maritime zones allocated under the Law of the Sea Convention are central to their Statehood, economies, food security, health and education prospects, and even their unique cultures and livelihoods. Therefore, the work of the Commission is particularly of importance to such countries. Reducing the vulnerability of these States and strengthening their resilience to climate change should be a collective responsibility of the international community.
STEFANO ZANINI (Italy), speaking on “Immunity of State officials from foreign criminal jurisdiction”, expressed support for draft article 7 on the exception to functional immunity in respect to crimes under international law. His Government is currently considering a similar rule in its national legislation. On draft article 1, he said the exclusive reference to international criminal courts might unintentionally narrow the article’s scope. On draft article 14 concerning the determination of immunity, he expressed concern over the generic expression “before initiating criminal proceedings” which was also used in draft article 9. As the determination of immunity requires a preliminary search for evidence, the Commission should use a different expression which sets a later time limit. On draft article 10, he pointed out that the mentioned notification by the forum State should be made in written form. Draft 18 should clarify that disputes may only arise after immunities have been finally determined by the competent judicial authority, he added.
Commenting on “Sea-level rise in relation to international law” and associating himself with the European Union, he agreed with the proposal to separately address cases concerning the complete submersion of a State and the partial reduction of a State’s territory which renders it unhabitable. The Commission must consider the effects periodic flooding and freshwater contamination have on statehood. It should also consider whether and to what extent affected States could invoke a state of necessity. On the protection of affected persons, he encouraged additional research on the application of human rights law, refugee and migration law, and disaster and climate change law, as well as the consequences. The final outcome should consist of a draft treaty which provides a new form of subsidiary protection for affected persons, he said.
LIGIA LORENA FLORES SOTO (El Salvador), on “Immunity of State officials from foreign criminal jurisdiction”, said that the Commission’s work reflects the foundational nature of the principle of sovereign equality, while also supporting the right of forum States to exercise criminal jurisdiction. This balance will help avoid tensions between States and will promote stability in international relations. She welcomed the clarification in draft article 1 that the Commission’s work on this topic is limited to recognizing items relating to immunity and foreign criminal jurisdiction and does not affect the regimen applicable to international criminal courts. Draft article 2 also helps explain the scope of the Commission’s work, excluding those cases to which well-established international law applies. This is the case, for example, for rules applicable to persons assigned to diplomatic missions and consular offices, for international organizations and for State armed forces. She also underscored the need to clarify that immunity cannot be interpreted in such a way as to allow impunity.
Turning to “Sea-level rise in relation to international law”, she stressed that sea level rise must be recognized as a scientifically proven fact and that its legal implications must not be limited to the law of the sea. Work on this topic must incorporate a broad range of international-law disciplines — including international environmental law and international human rights law — and must emphasize the need to protect populations displaced by this phenomenon. It must also recognize that sea level rise is not a uniform phenomenon — affecting different regions differently — and address the fact that sea level rise poses a particular risk to small island developing States. Moreover, she underscored that the need to protect those affected by the phenomenon should guide discussions, and the essential premise of protecting human dignity should lie at the heart of all political measures and norms applied. The protection of human dignity is a universal obligation that goes beyond examining the law of the sea and jurisdictional maritime areas, she said, expressing concern over affording centrality to the United Nations Convention on the Law of the Sea in work in this area.
ANDREI POPKOV (Belarus), speaking on “Immunity of State officials from foreign criminal jurisdiction”, recalled that the immunities of representatives are conferred to guarantee the exercise by States of their sovereign rights. He warned against the “groundless weakening” of these rules, which would affect relations between States. It should therefore be ensured that the punishment for crimes committed by such representatives is balanced with the principles of sovereign equality and non‑interference. To this end, the pre‑prosecution procedure should be strengthened and the main criterion for initiating a prosecution should be the waiver of the official's State immunity. He added that exceptions to this principle can only be recognized if they command the support of a majority of States and are reflected in practice. As such, State practice is heterogeneous. Representatives should be able to lodge an appeal against decisions that waive their immunity, in particular in the event that a host country has limited their right of access to a judge. In addition, there was a need to incorporate a mechanism for settling disputes through conciliation. The definition of “acts performed in an official capacity” is not sufficient, he added. Finally, he urged that people benefiting from immunity ratione personae continue to benefit from it after their term of office on the grounds that immunity ratione materiae does not guarantee a sufficient level of protection.
Turning to “Sea‑level rise in relation to international law”, he stressed the importance of the Commission’s work on the issue and called for the development of an international legal instrument addressing the matter.
RITA SILEK (Hungary), addressing “Sea-level rise in relation to international law” and associating herself with the European Union, said the Commission should focus primarily on pressing questions concerning human rights. There is no detailed overview on how the general and sectorial human rights conventions and agreements can be applied to the problems posed by sea level rise, she pointed out. In the short-term, the Commission should analyse how affected States can address the challenges concerning their citizens’ enjoyment of human rights and clarify the obligations of States in the event of adverse effects. Regarding the mid-term, the Commission should analyse questions concerning the duties of third States and the applicability of measures such as temporary protection, subsidiary protection and the principle of non-refoulment. Maintaining the universal nature of existing legal instruments — including the United Nations Convention on the Law of the Sea — and enhancing bilateral, regional and multilateral cooperation — through sharing best practices and concluding international agreements — are key to finding sustainable solutions in the long-term, she emphasized.
DAVID BIGGE (United States), speaking on “Immunity of State officials from foreign criminal jurisdiction”, highlighted his Government’s long-standing and unaddressed concerns. Draft article 7, in particular, does not reflect customary international law as it is not supported by consistent State practice and opinio juris. The Commission must work by consensus to best weigh the implicated, serious issues while accounting for State practice. If the draft articles are left unrevised, the commentary must reflect where they indicate a proposal for the progressive development of the law rather than codification. Further, if they do not reflect customary international law and incorporate States’ expressed views, the possibility for an international convention will be greatly reduced, he cautioned. As such, the Commission must reconsider the substance and format of the draft articles.
Regarding “Sea-level rise in relation to international law”, he spotlighted his country’s new policy which recognizes new trends in the practices and views of States on the need for stable maritime zones. The United States will work with other countries towards the goal of lawfully establishing and maintaining baselines and maritime zone limits. It will not challenge such baselines and zones that have not been updated despite sea level rise, he added. He also drew attention to the difficulty in drawing definitive conclusions on issues concerning statehood, given the lack of applicable State practice. On the protection of affected persons, he said his Government is considering ways to strengthen the application of existing protection frameworks, adjust national protection mechanisms to better accommodate people fleeing from the impacts of climate, and evaluate the need for additional domestic legal protections.
ALINA OROSAN (Romania), on “Immunity of State officials from foreign criminal jurisdiction”, commended the draft articles for addressing the relationship between the immunity of State officials from foreign criminal jurisdiction and the obligation to cooperate with international criminal tribunals. The current wording of draft article 1, paragraph 3 could represent a safeguard which preserves both regimes, she pointed out. While the final phrase “as between the parties to those agreements” might appear redundant, the procedural provisions offer the necessary guarantees which preserve the interests of the forum State and the State of the official. Concerning the invocation of immunity in draft article 11, she urged the Commission to provide clarity on the consequences of failing to do so in a timely manner. She then informed the Sixth Committee of the regional seminar her country organized in Bucharest on 21 September on States’ obligations under public international law in relation to the immunity of State officials.
Turning to “Sea‑level rise in relation to international law”, she underlined the unified and universal character of the Law of the Sea Convention. As the Convention must be the fundamental basis for any maritime legal issues, preserving the baselines and outer limits of maritime zones is crucial to legal stability; there must not be legal innovations or amendments. In relation to Statehood, the focus must be on how a State can continue to function should its territory be affected by a sea‑level rise instead of debating its continued existence. She highlighted the increased litigation on the issue of climate change and its negative impact on human rights as an important source of inspiration and further analysis for the Commission.
SHAHRINA NOOR AZMAN (Malaysia), commenting on “Immunity of State officials from foreign criminal jurisdiction”, noted that draft article 7 poses difficulties for States which are not parties to the Rome Statute of the International Court, the International Convention on the Suppression and Punishment of the Crime of Apartheid and the International Convention for the Protection of All Persons from Enforced Disappearance. The Commission should include a provision for States to articulate their reservations, she said.
Addressing “Sea‑level rise in relation to international law”, she said that the presumption of continued Statehood would ultimately lead to the exclusion of the criteria of the 1933 Montevideo Convention on the Rights and Duties of States. States must not modify existing international law, in particular the Law of the Sea Convention, she emphasized. The Commission should provide clarity on the artificial construction of islands by some affected States. The continuation of Statehood and the exercise of a State’s sovereignty should depend on land territory and the maritime species generated by such land territory. On the protection of affected persons, she noted that any future obligations should be on a case‑by‑case basis and reflect the principle of common but differentiated responsibilities, the national capacities of non‑affected States as well as humanitarian principles. Malaysia will offer assistance or protection to affected persons in accordance with its sovereign responsibility which includes protecting the national security, public order, morals, rights and freedoms of its citizens, she said.
HELMUT TICHY (Austria), on “Immunity of State officials from foreign criminal jurisdiction”, suggested that the term “State of the official” be defined in draft article 2, as it is used often throughout the draft articles. Clarification is needed that the State meant in this wording is not necessarily identical to the State of nationality of the official. Further, the definition of “act performed in an official capacity” raises questions, as it differs from the Commission’s terminology in its articles relating to State responsibility for internationally wrongful acts. He welcomed draft article 7 — which lists the crimes under international law to which immunity ratione materiae should not apply ‑ as “destined to contribute to combating impunity”. However, the crime of aggression should have been included in this list. Detailing his country’s position on other provisions, he said that the procedural provisions and safeguards should also provide for the right of representatives of the State of the official to be present in the relevant judicial proceedings of the forum State.
Aligning himself with the European Union on “Sea-level rise in relation to international law”, he noted that the second issues paper rightly indicated the difficulties of considering a continuation of statehood in cases where the territory of a State is completely covered by sea or rendered uninhabitable due to sea level rise. It also demonstrates that attempts to draw parallels to special entities considered to enjoy international legal personality — such as the Holy See or the Sovereign Order of Malta — may be of limited use for States. Similarly, Governments-in-exile would provide a useful comparison only to a limited extent. Rather, he said that modalities such as ceding or assigning segments or portions of territory in other States; association with other States; and the establishment of confederations or federations may prove more promising guides in the search for legal options to cope with the phenomenon of sea level rise.
NATALIA JIMENEZ ALEGRIA (Mexico), on “Immunity of State officials from foreign criminal jurisdiction”, said that the draft articles and associated commentaries represent a significant effort to systematize, and provide greater clarity on the international law applicable to State civil servants. She welcomed, among other provisions, those pertaining to procedural matters ‑ such as the invocation or renunciation of immunity ‑ and those relating to the peaceful settlement of disputes. The Commission’s work in this area, along with States’ comments thereon, facilitates clearer rules regarding the privileges and immunities of State civil servants, which will promote the development of diplomatic relations. She therefore called for continued study of this topic, along with the appointment of a new Special Rapporteur.
Turning to “Sea‑level rise in relation to international law”, she highlighted the technical nature of this topic, which requires consideration of various perspectives and expert views. The status of islands, rocks and elevations at low tide, along with the displacement of baselines and maritime zones, may have consequences for the sovereign and economic rights of States in various areas. Consideration of this issue must go beyond the point of view of States, as abstract entities, placing at its heart the need to protect persons affected by sea-level rise ‑ especially the most‑vulnerable populations. While study of this topic is still in the early stages, it is nevertheless important for orienting State action. She welcomed the broadening of the study to include opinion juris from various parts of the world; the application of general principles and norms of international law; and the views of scientific and technical experts.
MICHAEL IMRAN KANU (Sierra Leone), on “Sea‑level rise in relation to international law”, praised the high quality of the second issues paper, and stressed that the Study Group must not be prevented from reaching a conclusion on whether existing international law is sufficient or whether new rules and principles are required to fill the gaps. The principle of cooperation could play an important role, he said, noting the very high cost of preservation measures such as the installation or reinforcement of coastal barriers or defences and dykes. Also highlighting the principle of common but differentiated responsibilities, he stressed that the cost of addressing such a severe global environmental problem should be distributed among different States according to their historical responsibility. For low‑lying and small island developing States, the threat of sea‑level rise is existential in nature, he said, commending the Commission’s effort to take into account regional perspectives, including the views of African States.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, which has been the longest running topic in the current agenda, he voiced support for draft article 7. Irrespective of whether codification or progressive development, the clarity provided in relation to some of the worst crimes known to international law is welcome and should enhance the possibility of justice for victims, he said. On draft article 14 on determination of immunity, he said he agreed with the early determination considering the diverse State practice. He also deemed appropriate the use of the terminological phrase “competent authorities of the forum State” since a determination can be made by a police officer, a prosecutor, or a foreign ministry official, before courts become involved. Further, draft article 15 on transfer of the criminal proceedings provides for an important safeguard that bears in mind a balance of interests between the State of the forum and the State of the official, he pointed out.
TANIA VON USLAR‑GLEICHEN (Germany), commenting on “Immunity of State officials from foreign criminal jurisdiction”, said States are best suited in balancing the effective prosecution of international crimes and stability in international relations. The draft articles must reflect a transparent distinction between lex lata and lex ferenda. Any substantive change of international law proposed by the Commission must be agreed upon by States through a treaty, she added. She spotlighted draft article 8 regarding its clarity on the relationship between the draft’s procedural parts and its substantive norms. Draft article 7, however, continues to remain an area of concern as the formulation “shall not apply” allows for potential misinterpretation and political misuse. The Commission should clarify the applicability of part IV of the Procedural Provisions and Safeguards which will only find broad acceptance if they reflect different domestic legal systems and their specific approaches towards balance. On draft article 15, she noted that a transfer should only occur if the State of the official is willing and able to properly prosecute the official.
Addressing “Sea‑level rise in relation to international law”, she said a contemporary reading of the Convention on the Law of the Sea gives coastal States the right to update their baselines but does not quire them to do so. Existing legal frameworks on the protection of affected individuals are fragmented and general in nature. As new instruments may be needed to reflect the specificities of the long‑term consequences of sea‑level rise, she welcomed the Commission’s future work on human rights implications; the scope of State obligations; relevance of non‑refoulement and humanitarian visas, tools for the avoidance of Statelessness; and international cooperation. There must be a transparent distinction between findings de lege lata and suggestions for the progressive development of international law, she emphasized.
MOHAMMAD SADEGH TALEBIZADEH SARDARI (Iran), on “Immunity of State officials from foreign criminal jurisdiction”, said that draft article 7 is neither in congruence with State practice, nor does it reflect customary international law. Immunity is not equivalent to impunity, he said, adding that limiting the scope of immunity in favour of the responsibility of State officials should benefit from representative and consistent State practice. This draft article cannot be considered a reflection of codification of existing international law. Rather, it should be regarded as progressive development of the current law. He also expressed his disagreement with the list of crimes enumerated in draft article 7, as well as the annexed list of international treaties referred to therein. Due to the sensitive nature of immunity as the direct consequence of the principle of sovereignty, the Commission must proceed cautiously, he stressed.
Turning to “Sea-level rise in relation to international law”, he commended the Study Group on its valuable efforts to prepare the second issues paper. No one can turn a blind eye to the potential threats of the rise in global sea level, which directly threatens the very existence of some States, he said. On the subtopic of “Ceding or assignment of segments or portions of territory to other States, with or without transfer of sovereignty”, he proposed that another option for a State could be to transfer sovereignty over a portion of the territory of the affected State to an international mechanism, such as the International Seabed Authority (ISA). Acknowledging that sea level rise might inevitably lead to changes in baselines, he stressed that any change in lines shall be based on principles of equity and fairness. If the existing regime of the law of the sea should remain without change, he asked, what is the Commission’s approach towards this issue, since dealing with future law is not in its mandate?
VINÍCIUS FOX DRUMMOND CANCADO TRINDADE (Brazil), on “Immunity of State officials from foreign criminal jurisdiction” said that immunity contributes to the stability of international relations; it prevents abuses in the exercise of criminal jurisdiction, which may be used to serve not justice, but other interests. A high‑level State authority must be protected from the subordination to foreign domestic jurisdictions in relation to his or her official capacity, he said, adding that, at the same time, immunity should not mean impunity. Highlighting rules such as aut dedere aut iudicare and the complementary role of the International Criminal Court, he added that the substantive and temporal elements in draft articles 3 and 4 reflect customary international law as recognized in the case-law of the International Court of Justice. Draft articles 5 and 6, on immunity ratione materiae of State authorities, also reflect customary international law, he noted, speaking in favour of the exceptions to the immunity from jurisdiction ratione materiae presented in draft article 7, which aim to combat impunity for serious international crimes.
Turning to “Sea‑level rise in relation to international law”, he said that with a coast of almost 8,000 km and a coastal population of over 50 million, sea‑level rise is a pressing issue. Solutions to the complex problems arising from the topic should be in accordance with the Law of the Sea Convention. Noting that there is no record of situations where the territory of a State had been completely submerged or rendered uninhabitable, he added that resorting to established treaty law is thus certainly useful, such as the 1933 Convention on the Rights and Duties of States. The presumption of continuity could be an acceptable starting point for the work of the Commission on this matter, he said, calling on States to cooperate in good faith and taking into consideration their common but differentiated responsibilities. The States most affected by sea level rise, especially small island developing States, are not the ones most responsible for climate change, he stressed.
LUCIA TERESA SOLANO RAMIREZ Colombia), on “Immunity of State officials from foreign criminal jurisdiction”, expressed concern over the draft articles’ provisions relating to the solution of disputes, as such constitute a “tacit acceptance of specific judicial means”. Noting that States interpret immunity and criminal jurisdiction differently, she said that Colombia will submit its comments in writing on this matter. She also said that her country will “continue to use as its compass” the need for clear rules in this area, and the belief that such rules must respect the sovereignty and legal systems of each State.
Turning to “Sea‑level rise in relation to international law”, she stressed that “no dithering can be admitted” on this issue. The impact of climate change and consequent sea‑level rise is seen across the world, but it is more imminent in certain regions than in others. Latin America and the Caribbean are particularly vulnerable, and an estimated 55 per cent of the population living on Colombia’s Caribbean coast ‑ along with 45 per cent of those living on its Pacific coast ‑ will be exposed to rising sea levels before 2050. The only possible way to address this challenge is to do so in a coordinated fashion. Though the scope of the Commission’s study is broad, it can at least map out areas where sea‑level rise might have significant effects for some States. This would contribute to finding a mechanism with which to address current and future concerns in this area. In this regard, Colombia will provide relevant data and information about its practice. She added that work on this topic must consider all sources of international law, not just the Convention on the Law of the Sea.
MATÚŠ KOŠUTH (Slovakia), speaking on “Immunity of State officials from foreign criminal jurisdiction”, concurred with the Commission that the immunities from foreign criminal jurisdiction must not lead to the impunity for the most serious crimes under international law. He further welcomed that the Commission decided to address the relationship of the draft articles with the international criminal jurisdiction in paragraph 3 instead of a stand‑alone draft article, as proposed previously. Turning to draft article 7, he suggested that the list of crimes should also include the crime of aggression.
On the “Sea‑level rise in relation to international law”, he suggested that the Commission focuses on legal aspects of this topic in line with its mandate and does not embark upon issues of policy. He, therefore, called for a prudent approach regarding the discussion on possible alternatives as far as the preservation of international legal personality without territory is concerned. With respect to the protection of persons affected by sea‑level rise, he encouraged the Commission to examine in more details whether existing instruments sufficiently protect persons affected by sea‑level, while taking into account additional practice from States and expertise of international organizations.
KERLI VESKI (Estonia), on “Immunity of State officials from foreign criminal jurisdiction,” noted that the Commission has not yet taken a position on whether to recommend that the draft articles be used as a basis for negotiations of a legally binding treaty. She welcomed the provision on a relationship between the topic of immunity of State officials from foreign criminal jurisdiction and international criminal courts and tribunals. She also voiced agreement with the Commission that it is important to reflect the developments in the field of international criminal law and the establishment of international criminal courts and tribunals. Further, the Commission has adopted several draft articles devoted to facilitating communication between the forum State and State of the official, she said, highlighting draft article 17 on consultations on matters relating to the immunity of the official covered by draft articles. Expressing hesitation on whether there is a pressing need for a specific draft article on consultation, she said the possibility for consultation between two States constitutes a normal way of diplomatic communication and should always be available.
Regarding “Sea‑level rise in relation to international law,” and aligning herself with the European Union, she said that the second issues paper helps to clarify the rules of international law in this important matter. Concerning the issue of Statehood impacted by sea‑level rise, she added that the main goal should be the preservation of legal stability and predictability in international relations. Acknowledging that there is no generally accepted notion of “State”, she noted that, instead, there are criteria for Statehood, including a permanent population; defined territory; Government; and the capacity to enter into relations with the other States or other subjects of international law. On some occasions, a State could not automatically disappear because it does not meet all mentioned criteria, especially through the loss of the territory, she said, recalling Estonia’s experience when it lost the control over territory because of an unlawful occupation, but the Statehood and legal personality of the State continued. Noting that more than 70 States ‑ almost one third of the international community ‑ are or are likely to be directly affected by sea‑level rise, she said she looked forward to future discussions about the possibility for a State to exist without territory as an international legal personality.
ARMAN SARVARIAN (Armenia), speaking on “Immunity of State officials from foreign criminal jurisdiction”, stressed the importance of avoiding potential conflicts of obligations. As this pertains not only to substantive drafting but also to the settlement of disputes, he commended draft article 18 for providing the means to resolve potential conflicts of jurisdiction. He also added his support for the retention of draft article 7 on crimes of international law in which immunity ratione materiae do not apply. However, in regard to draft article 4, he questioned whether such immunity covers all acts performed by Heads of State, Heads of Government and Ministers for Foreign Affairs during or prior to their term of office.
On “Sea-level rise in relation to international law”, he urged the Commission to account for State practices, especially on the questions of statehood and the preservation of maritime rights. The Commission should communicate its findings on statehood and the protection of displaced persons through a report. Other questions — such as maritime entitlements — might be better suited for tangible proposals for legal reform. Regarding the Commission’s Special Rapporteur trust fund, he highlighted its potentially important role in mobilizing contributions from public and private bodies.
ADAM MCCARTHY (Australia), on “Immunity of State officials from foreign criminal jurisdiction”, requested that the commentaries to the draft articles clearly state where the Commission has sought to codify an existing rule of customary international law and where it has engaged in progressive development of the law. The Commission should also continue to identify the relevant State practice and opinion juris in support of the draft articles. He acknowledged that the Commission recognizes the debate on draft article 7, namely the existence or non‑existence of limitations and exceptions to immunity ratione materiae. Unfortunately, it appears this debate remains unresolved. Citing the provisional adoption of draft article 7 and the related annex by recorded vote during its sixty-ninth session in 2017, he noted that the draft and the related annex were adopted without a vote during the seventy‑third session. “But we note that some members stated that this did not mean that either the law or their legal positions had in any way changed,” he said.
Regarding “Sea‑level rise in relation to international law”, he said that, as an island continent, Australia is surrounded by the Indian, Pacific and Southern Oceans and has one of the largest marine jurisdictions in the world. “As such, we are all too aware that sea‑level rise, and other climate change impacts, raise a multitude of complex and novel international law issues,” he pointed out. Sea‑level rise has potential impacts on the enjoyment of a range of human rights, including the rights to life, property, adequate food and water, health, adequate housing and cultural identity. However, the existing international law is fragmented and does not clearly envisage scenarios involving any potential loss of statehood. In 2021, the Pacific Islands Forum adopted the Declaration on Preserving Maritime Zones in the Face of Climate Change‑Related Sea‑Level Rise. The Declaration upholds the integrity of the Convention on the Law of the Sea (UNCLOS) while clarifying its interpretation, so as to preserve maritime zones established in accordance with the Convention in the face of sea‑level rise.
ZINOVIA STAVRIDI (Greece), speaking on “Immunity of State officials from foreign criminal jurisdiction”, welcomed the placement in draft article 1 of the compromise text adopted on the relationship between the draft articles and the norms governing the functioning of international criminal tribunals. She expressed concern, however, over the reference to “international agreements”, which does not seem to fully encapsulate recent practice regarding the establishment of international courts and tribunals. Detailing Greece’s position on other draft articles, she noted that draft article 18 refers to “a dispute concerning the interpretation or application of the present draft articles”. This wording is usually used when a treaty is envisaged, not to refer to a dispute relating to the determination or application of immunity in a particular case. Further, this wording departs considerably from other, similar clauses adopted by the Commission. She added that, if the Commission’s intention is to enable States to resolve such disputes at an early stage, draft article 18 should be reformulated as a recommendation to this effect.
Mr. MORA FONSECA (Cuba), addressing “Immunity of State official from foreign criminal jurisdiction”, highlighted the importance of striking a balance between essential principles and protection of civil servants and States officials against politically motivated use of criminal jurisdiction. He emphasized the need to consider national legislations, which determine who enjoys immunity and its scope. Cuban internal norms guarantee that there is no impunity for perpetrators of violations of international law or crimes against humanity. Any claim to exercise jurisdiction over a foreign citizen, who is supposed to enjoy immunity, should be communicated ahead of time. Such an obligation should be considered as a first guarantee for a State to invoke immunity or renounce it. The criteria should not be applied to the principle of universal jurisdiction, nor the obligation of extraditing or judging State officials who enjoy immunity. Also, regimes should not be altered that have already been established in international conventions.
Turning to “Sea‑level rise in relation to international law”, he underscored, that baselines and maritime boundaries should not be subject to change due to rising sea levels. That could be an additional expenditure, which is very difficult for small island States, and might create legal insecurity due to the loss of natural resources that are necessary for their economies. Referring to the possible extinction of a State due to the rising sea and loss of territory, he said that the principle of producing this scope for small and island States should be maintained. Highlighting the importance of international cooperation, he noted that Cuba has undertaken a number of national plans to grapple with and adapt to the impact of the loss of coastline produced by sea‑level rise. He also offered to share his country’s experience in protecting people who live in coastal zones given the phenomenon of the climate change. “Through the Cuban State plan to grapple with climate change, Cuba has provided, as one of its components, the displacement of 41 thousand people who live in coastal zones, which might disappear,” he added.
MATEUS KOWALSKI (Portugal), speaking on “Immunity of State officials from foreign criminal jurisdiction”, suggested commencing with a second reading since the draft articles do not present a departure from previous practice. He commended the new paragraph of draft article 3 for highlighting the independence of the regimes applicable to immunity before national criminal courts and from international criminal tribunals. At the same time, it safeguards the application of legal frameworks relevant to the latter’s functioning and presents a text which applies to all States. The procedural provisions and safeguards in part four — as a step towards compromise and as a possible reassurance against the misuse of proceedings against State officials — will have a beneficial impact which surpasses the limits of the instrument, he said.
Turning to “Sea-level rise in relation to international law”, he commended the second issues paper for including information on the existing and emerging practices of States, international organizations and other relevant entities; different sources of law; and available scientific data. The law needs to be more developed and less fragmented in order to tackle the global phenomenon of sea level rise, he stressed.
AZELA GUERRERO ARUMPAC MARTE (Philippines), commenting on “Immunity of State officials from foreign criminal jurisdiction”, reiterated the need to respect the sovereign equality of States and protect State officials from the politically motivated and abusive exercise of criminal jurisdiction. This must be balanced against the recognized need to address impunity for international crimes.
Regarding “Sea-level rise in relation to international law”, she underlined the importance of legal stability, security, certainty and predictability. The Commission must account for realities, customs and applicable general principles of law — including equity, good faith, international cooperation and common but differentiated responsibilities — as sources. The Convention on the Law of the Sea must be the legal framework for all activities concerning oceans and seas, she noted. On statehood, she urged a pragmatic approach which favours stability and predictability while being mindful of specific circumstances. On the protection of affected persons, she echoed the calls to further develop existing international legal frameworks while highlighting the vulnerability of States in South-East Asia. The protection of affected persons in situ or internally displaced should be of particular interest. The Commission must consider the policies and related instruments of individual States in affected regions when identifying emerging practices, she stressed.
Mr. SMYTH (Ireland), on “Immunity of State officials from foreign criminal jurisdiction”, welcomed the inclusion of a without‑prejudice provision in draft article 1 to address the draft articles’ relationship with the rules governing international criminal courts and tribunals. He expressed reservation, however, over its current wording, which appears to be too restrictive. While the same is based on the United Nations Convention on Jurisdictional Immunities of States and Their Property, it does not correspond with recent practice concerning the creation of international criminal courts and tribunals. As it stands, it would omit those international courts and tribunals not established by international agreement ‑ such as those established by the Security Council ‑ and therefore requires further consideration. He added that, if the final form of the draft articles is to be an international agreement, then a dispute‑settlement provision would be an important safeguard to avoid political or abusive prosecutions.
Turning to “Sea-level rise in relation to international law”, he pointed out that the impact of this pressing ‑ “even existential” ‑ issue is disproportionately felt in low‑lying areas and developing countries, particularly small island developing States. As an island State, Ireland is aware of the urgency of this topic. The Commission’s work in this area will be helpful to identify gaps in the relevant legal framework. On this point, he said that the Convention on the Law of the Sea will be a key consideration in any response. Noting the complex, novel issues raised in the second issues paper ‑ namely those of Statehood and the protection of persons affected by sea‑level rise ‑ he observed that few, if any, relevant legal precedents exist. In this regard, the Commission has asked States to provide information not only on germane national practice, but also on the requirements for the configuration of a State as a subject of international law and for the continuation of a State’s existence in the context of sea‑level rise.
ANNE AAGTEN (Netherlands), turning to “Immunity of State officials from foreign criminal jurisdiction”, said her delegation has repeatedly voiced their concerns with this topic’s development, particularly the absence of State practice and opinion juris and the project’s conceptual underpinnings. Her delegation will ask the Netherland’s Advisory Committee on Issues of Public International Law to provide the Government with independent advice on the draft articles now adopted on first reading.
Regarding “Sea‑level rise in relation to international law”, she underscored the crucial importance of the Commission’s discussion for States that are directly affected by sea‑level rise, particularly for small island developing States that could be at risk of losing their Statehood as sea levels rise. These criteria are concerned with the creation and existence of a State as an international legal person and constitute a general legal framework for questions of the continuity of statehood. Yet State practice shows that these criteria are not applied in the same manner to cases of the creation of States, and cases of the continuity or extinction of States. State practice shows the existence of a strong presumption in favour of the continuity of Statehood, even in cases in which one or more criteria are no longer met. She welcomed the comment of the Study Group on the recognition of the right to a clean, healthy and sustainable environment by the Human Rights Council. This right was recognized by the General Assembly in July and she recommended the Study Groups consider the added value of the right to a clean, healthy and sustainable environment in relation to sea‑level rise.