Sixth Committee Speakers Debate Functions of State Officials’ Immunity, Sea-Level Rise Impact on Statehood, as International Law Commission’s Cluster 2 Concludes
Commencing Cluster 3, Delegates Take Up General Principles of Law, Succession of States
As the Sixth Committee concluded Cluster 2 of the International Law Commission’s report, speakers tackled “Immunity of State officials from foreign criminal jurisdiction”, debating the differentiated application of the immunity ratione personae and ratione materiae in the criminal jurisdiction of foreign States, while also underscoring the need of finding balance between protecting immunity and ensuring accountability for serious crimes. (For background, see Press Release GA/L/3672.)
The delegate of the Czech Republic pointed out that, in the vast majority of cases, foreign State officials that enjoy immunity ratione materiae may be fully subject to the criminal jurisdiction of foreign States without any immunity being applicable. However, this fact was not taken into taken into account in the draft provisions, he observed.
Spain’s representative pointed out that Heads of State, Heads of Government and ministers benefit from immunity ratione personae only during their term in office, including for all actions carried out privately. For State officials, however, immunity ratione personae only applies for actions carried out in their official capacity. “The drafts take into consideration the principle of accountability and combating against impunity, which provides it with a solid basis,” he added.
The representative of the United Arab Emirates, however, noted that draft article 7 does not reflect existing international law or relevant State practices. It also did not achieve the necessary balance between the sovereign equality of States and the fight against impunity. Voicing support for accountability for international crimes, he noted that “immunity is procedural not substantive”.
South Africa’s delegate also underscored the need to strike a balance between protecting the well-established norm of immunity and preventing impunity for serious crimes. In this regard, she welcomed the inclusion of safeguard provisions against abuse, inconsistencies, and unfairness in the application of such immunity.
The representative of Viet Nam noted that the immunity of State officials from foreign criminal jurisdiction must be addressed under the principles of sovereign equality and non-intervention in the domestic affairs of States. It is necessary to protect officials from abusive or politically motivated exercise of criminal jurisdiction, she stressed.
On that point, Algeria’s representative said that the principle of sovereign equality lays out the basis for the immunity of State officials from foreign international jurisdiction and gives the right to the forum States to exercise their criminal jurisdiction.
Speaking after the debate, Concepción Escobar Hernández, Special Rapporteur on “Immunity of State officials from foreign criminal jurisdiction”, acknowledged the large number of speakers showing enormous interest in the topic. Throughout the years, the International Law Commission has been very conscious of all Member States’ opinions. Although not all opinions have been taken into account when drafting articles, the Commission has worked in a spirit of complete collegiality and rules of transparency, offering the Sixth Committee the reasoning behind its decisions, she noted.
Speakers also took up “Sea-level rise in relation to international law”, offering opinions on the effects of sea-level rise on statehood and the continuity of a State, while underscoring the importance of international cooperation and spotlighting the lack of a corresponding legal framework.
The delegate of Samoa, speaking for the Pacific small island developing States, highlighted the ever-increasing possibility that those States’ territories could be entirely submerged or depopulated due to climate-change related sea-level rise. Regarding the continuity of a State, she emphasized that criteria contained in instruments, such as the 1933 Montevideo Convention on the Rights and Duties of States, apply more appropriately to the creation of States and not to the extinguishment of States.
Bangladesh’s representative, highlighting recent events in his country, reported that it was just recovering from a devastating cyclone caused by the adverse effect of climate-induced rising sea levels. He pointed out the absence of any existing legal framework to determine legal status of statehood when the land territory of a State is completely covered by the sea.
Along those lines, the delegate of Türkiye said that since there has not been a situation of a State whose land territory has been completely covered by the sea and thus uninhabitable for its population, focusing on statehood in this regard is “farfetched and hypothetical”. She underscored that more in-depth research and analysis of the phenomenon was needed to define potential legal effects of sea-level rise.
The representative of Jamaica shared practical efforts her country undertook to fortify its coastline. However, she pointed out that the existing legal framework of the protection of persons affected by sea-level rise needs to be strengthened. Drawing attention to the scope and principles of international cooperation, she suggested that the Commission elaborate on the obligations of non-affected States that would be required to cooperate in case of an emergency.
Echoing that, the representative of Antigua and Barbuda, speaking for the Alliance of Small Island States (AOSIS), underlined that the duty of cooperation is a general principle of international law. Stressing that small island States are among the lowest emitters of greenhouse gases, she said: “To expect small island States to shoulder the burden of sea level rise — without assistance from the international community — would be the pinnacle of inequity.”
Galvão Teles and Ruda Santolaria, Co-Chairs of the Study Group on “Sea-level rise in relation to international law”, acknowledged the suggestions, criticisms and identification of points needing further study. Both encouraged further informal and constant interaction, stressing that such exchanges are of crucial importance; they feed the Study Group’s work and analysis and make it possible for the Study Group to take a progressive and prudent approach with a view to shedding light on a sensitive topic that is urgent and deserves priority treatment.
The Sixth Committee also commenced deliberations on Cluster 3 of the International Legal Commission’s report on “Succession of States in respect of State responsibility” and “General principles of law”. The delegates debated the approach taken by the Commission to present its work in the form of draft guidelines rather than draft articles, among other things.
The representative of Jordan expressed disappointment over the fact that the Commission, in a rush for a first reading, changed the format of the draft articles into draft guidelines without changing their content. This resulted in a disjointed set of draft articles and draft guidelines, short of first reading, that are not based on practice, which is rare in this field.
Portugal’s representative, on the contrary, welcomed the Commission’s decision to turn the draft articles into draft guidelines, pointing out that such output can still contribute significantly to greater clarity and understanding on this issue.
Similarly, the delegate of Norway, also speaking for Finland, Iceland, Denmark and Sweden, welcomed the approach and pointed out that what matters is a well-drafted and balanced set of provisions that will be useful in practice, regardless of the form.
Also speaking on Cluster 2 were the representatives of Israel, Cameroon, Maldives, United Kingdom, Russian Federation, Chile, Thailand, Egypt, Federated States of Micronesia, Cyprus, Saudi Arabia, Japan, Indonesia, United Republic of Tanzania, Papua New Guinea, Liechtenstein, Côte d’Ivoire, Peru, Nicaragua, Republic of Korea, New Zealand, Argentina and Bulgaria. Observers for the Holy See and the State of Palestine also spoke.
Also speaking on Cluster 3 were the representatives of Singapore, Italy and Belarus.
The Sixth Committee will next meet at 10 a.m. on Wednesday, 2 November, to continue its consideration of the third cluster of topics from the International Law Commission’s report on the work of its seventy-third session.
Statements on Cluster 2
ASHA CECILY CHALLENGER (Antigua and Barbuda), speaking for the Alliance of Small Island States (AOSIS) and addressing “Sea-level rise in relation to international law”, noted that small island developing States are especially affected by rising sea levels. The Alliance’s Leaders’ Declaration affirmed that there is no obligation under the United Nations Convention on the Law of the Sea to keep baselines and outer limits of maritime zones under review nor to update charts or lists of geographical coordinates once deposited with the Secretary-General. Further, the Montevideo Convention is not relevant to the question of continuation of statehood; it is up to States to govern these situations. “It is inequitable and unjust to now suggest that in the context of rising sea levels we should strictly apply criteria developed in a regional agreement signed almost a century ago and ratified by 16 countries,” she pointed out. In addition, the potential loss of land territory by small island States because of sea level rise is anthropogenic in cause. Once a State is created by a people expressing their right to self-determination through statehood, that statehood will cease only if another form of expression of the right to self-determination is explicitly sought and exercised by that people.
Protection of persons in the face of sea level rise is a global challenge that requires meaningful inter-State cooperation, she said, stressing: “It is a legal obligation for every State.” The duty of cooperation is a general principle of international law and it is an obligation to assist States most affected by sea level rise. In this regard, the developed States have a duty to provide financial, technical and scientific assistance, among other obligations. The International Court of Justice recognized that States have a customary duty to cooperate in the prevention of transboundary environmental harm and help one another strengthen their resilience to disasters. Similarly, developed, non-affected States have an especially strong obligation to assist developing States directly affected by the disaster in an adequate, timely and sustainable manner. She recalled that the AOSIS member States are among the lowest emitters of greenhouse gases, yet they face some of the most severe consequences of rising sea levels. “To expect small island States to shoulder the burden of sea level rise — without assistance from the international community — would be the pinnacle of inequity”, she emphasized.
GALIA RIVLIN (Israel), on “Immunity of State officials from foreign criminal jurisdiction”, noted that the long-standing and fundamental rules are firmly established in the international legal system, and rightly so. However, she voiced concerns that several of the draft articles provisionally adopted by the Commission thus far fail to reflect the current state of play of customary international law as supported by State practice and opinio juris; they constitute proposals for the possible progressive development of the law — without openly acknowledging that fact. Should the Commission recommend endorsing such progressive development, it should, at the very least, make note of that explicitly. Further, a determination of immunity should be made by the competent authorities of the forum State, which are not necessarily its courts. Specific determinations regarding such immunity should be considered by the highest-level decision makers in the forum State, and only after consultation with the State of the official. The International Court of Justice would be an appropriate forum to resolve disputes on the determination of immunities only if the consent of all States involved is given.
Turning to “Sea-level rise in relation to international law”, she acknowledged that climate change constitutes an existential threat to humanity, and the issue has potential far-reaching implications on key underpinnings of the international legal order, including the principles of legal stability, security and predictability. On statehood, she said she agreed with the Co-Chair of the Study Group that the preliminary reflections on that issue should not aim to prejudge or formulate conclusions on such a sensitive matter, which deserves considerable caution.
MATILDA BARTLEY (Samoa), speaking for the Pacific small island developing States, associated herself with the Alliance of Small Island States, and stressed that action at all levels and from all sectors is urgently needed to address the threat of sea level rise. The issues papers produced by the Co-Chairs of the Study Group provide an important foundation on which to build the legal solutions for the existential challenge of sea level rise for vulnerable States. She pointed out that, contrary to the impression that may have been given by others in the Committee in earlier discussion on Cluster 2, the Declaration on Preserving Maritime Zones in the Face of Climate Change-related Sea Level Rise of the Pacific Islands Forum does not formally represent an extra-legal circumvention of the Law of the Sea Convention or the establishment of new international law. Because it is grounded on an interpretation of the existing law of the sea as reflected in the Convention, States from outside the Pacific Islands Forum membership are welcome to endorse and apply the approach of the Declaration, including those that are not States parties to the Convention.
The issues relating to statehood, statelessness, sovereignty and self-determination are directly relevant to the Pacific region given the ever-increasing possibility that their territories could be entirely submerged or depopulated due to climate change-related sea level rise, she continued. There must be a strong presumption as to the continuity of a State once established, she said, emphasizing that criteria contained in instruments such as the 1933 Montevideo Convention on the Rights and Duties of States apply more appropriately to the creation of States, and not to the extinguishment of States. On the protection of persons affected by sea level rise, she said that the impacts of sea level rise, including coastal erosion, loss of habitable land and increased vulnerability to natural disasters, cannot always be adequately addressed through adaptation strategies and improved infrastructure. Some coastal communities in the Pacific are already being forced to relocate from their villages due to sea level rise. The duty to cooperate, which is well-recognized in international law, must be applied to help States cope with the adverse impacts of sea level rise on their populations, she said.
ZACHARIE SERGE RAOUL NYANID (Cameroon), speaking on “Immunity of State officials from foreign criminal jurisdiction”, highlighted his delegation’s vision of immunity alongside the existence of State sovereignty. Those who represent a State should not be undermined by a “sword of Damocles” hanging over their heads, he said. The quality of diplomatic relations that contributes to fostering international peace and security must be preserved. He emphasized that, while those who benefit from immunity remain justiciable, only when their State of origin cannot try them can the forum State substitute its jurisdiction. He also welcomed the Commission’s efforts relating to procedural guarantees, noting that — while it is important to ensure responsibility — States must be given room to manoeuvre depending on the circumstances. Highlighting issues with certain draft articles, he underscored that renunciation of immunity should be a precondition for all judicial action by a forum State against officials of a foreign State, and that this renunciation must be explicit. Promoting certain jurisdictions over national courts would run counter to the principle of complementarity.
Turning to “Sea-level rise in relation to international law”, he noted that the phenomenon, currently accelerating, is causing a dramatic impact on those who live in the most-vulnerable coastal areas. Beyond its considerable human and environmental impact, sea level rise raises several legal challenges that justify the fact that the Commission has recently been seized of this issue. Such challenges include the impact of sea level rise on the limits of coastal States’ maritime spaces and the existence of uncertainties in positive law — particularly the Law of the Sea Convention, which is silent on this subject. The most-affected States are waiting for certainty in this area, and the Commission’s Study Group should include considerations that go beyond the traditional dichotomy between codification and progressive development of international law. Urgent action is required, as the loss of territory would affect a State’s ability to fulfil its obligations under international law. Therefore, it would be useful to examine practical options for vulnerable States whose very existence is threatened by rising sea levels. The Commission should continue its work to expose any relevant legal problems resulting from the phenomenon, he added.
MUHAMMAD ABDUL MUHITH (Bangladesh), speaking on “Sea-level rise in relation to international law”, reported that his country has just recovered from a devastating cyclone that resulted mainly from the adverse effect of climate-induced sea level rise. Noting that the cyclone forced temporary internal displacement of at least 1 million people, he reported that the Government successfully evacuated all of those people who were in danger to numerous multi-storeyed evacuation shelters well ahead of the landfall. On the question of statehood, he pointed out that when the land territory of a State is completely covered by the sea, the determination of the legal status of the statehood requires intensive future work in the absence of any existing legal framework. In this regard, in 2020 Bangladesh adopted a national strategy on the management of internal displacement in the context of disasters and climate change. The strategy stresses the need for the protection of persons in the event of natural disasters through three pragmatic steps: prevention and preparation as risk‑reduction measures; protection during displacement; and durable solutions.
LAUZA ALI (Maldives), associating herself with the Alliance of Small Island States (AOSIS) and the statement to be made by the “Group of 77” developing countries and China, addressed “Sea‑level rise in relation to international law”. Given her country’s vulnerability to the effects of sea‑level rise, it has long supported international action on the issue. In 1989, the Maldives hosted the first Small States Conference on Sea Level Rise, bringing together 14 small island States to sign the Malé Declaration on Global Warming and Sea Level Rise, which led to the establishment of AOSIS. Climate scientists have already forecasted the unthinkable: the Maldives will be uninhabitable by the end of the century. The international community must consider the perspective of countries like her own when creating and formulating policies and address the issue seriously and urgently, she emphasized. On the issue of protecting people affected by sea‑level rise, she pointed out that climate change is not a natural disaster, but a man‑made one. As such, the draft articles can offer useful guidance, but should be complemented with an analysis that includes transboundary harm and international accountability following a “common but differentiated responsibilities” approach. The debate should consider that perspective and follow a human rights‑based approach.
THI HA TRANG DAO (Viet Nam), addressing “Immunity of state officials from foreign criminal jurisdiction”, noted that originates from customary international law, and must be addressed under the principles of sovereign equality, non‑intervention in the domestic affairs of States, and the needs for maintenance of international peace and security. This is necessary to protect State officials from abusive or politically motivated exercise of criminal jurisdiction.
On “Sea‑level rise in relation to international law”, she stressed that the issue must be urgently studied in order to find a timely solution. Viet Nam is one of the countries most vulnerable to climate change and sea‑level rise in particular, which has severely impacted its coastline. Her delegation shares the urgency of codifying international regulations on the issue, as the phenomenon may even threaten the Statehood of certain countries, she said. All solutions to sea‑level rise must be based on international law, including the Convention on the Law of the Sea, she added.
Ms. MOTSEPE (South Africa), on “Immunity of State officials from foreign criminal jurisdiction”, said the International Law Commission’s work will make a significant contribution towards legal certainty regarding existing principles of international law. States will need to strike a balance between the need to protect the well‑established norm of such immunity, while preventing impunity for serious crimes. Welcoming the inclusion of safeguard provisions against the abuse, inconsistencies, and unfairness in the application of such immunity, she said the present draft articles do not affect the rights and obligations of States parties under international agreements establishing international criminal courts and tribunals. She also voiced support for draft article 7 which clearly states that immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the crime of genocide, crimes against humanity, war crimes, crime of apartheid, torture and enforced disappearance.
Turning to “Sea‑level Rise in relation to international law,” she noted that the rising of sea level and erosion are threatening to alter her continent’s shorelines and destroying important heritage monuments. She said she agreed with the view that a State can remain a subject of international law and retain its sovereignty, despite the loss to its territory and forceful displacement of its population. In that regard, no criteria exists under international law which requires that the seat of the Government of the State must be located within its own territory or a particular territory. However, that presumption also has limitations, she said, questioning whether a Government which has been relocated to another State will be able to continue to exercise effective control over its territory and maritime zones. Welcoming the alternative measures proposed by the Commission in its report, including the creation of artificial islands and the possibility of leasing out territories from other States, she also acknowledged the potential threat to human rights of a community of people that might have migrated to the territory of another State as a consequences of sea level rise.
DEBRA GERSTEIN (United Kingdom), speaking on “Immunity of State officials from foreign criminal jurisdiction,” encouraged States to consider submitting comments regarding the topic, adding that the Commission must ensure that their views are fully taken into account as work proceeds in 2023. She welcomed the clarification in draft article 1 regarding the topic’s scope, including its relationship to specific international agreements and other special rules of international law. However, she noted that the status of the exceptions to immunity being proposed to States in draft article 7 and its associated annex remains contested both within the Commission and even more so among States. Stressing that the Commission must clearly indicate those draft articles which it considers to reflect existing international law and those which it does not, she added that if the Commission’s work on this topic is going to contain proposals for the progressive development of law or new law, the appropriate outcome would be draft articles which could form the basis for a negotiated convention.
Welcoming the Commission’s study of “Sea‑level rise in relation to international law,” she noted that this topic covers issues of fundamental and direct concerns for many States, in particular small island developing States. Thanking the co‑chairs and the members of the Study Group for their work on Statehood and protection of persons, she said her Government is considering it carefully.
MS. MELIKBEKYAN (Russian Federation), speaking on “Immunity of State officials from foreign criminal jurisdiction”, expressed support for the inclusion of draft article 7, noting that the Commission should not “portray its work as possibly codifying customary international law” when national jurisprudence and treaty law do not support the exceptions set forth in the draft article. The Commission should return to this article during the second reading. Among other comments, she said that an analysis of the applicability of the principle could be useful in clarifying draft article 15 and its commentary. Further work was needed on the significance of nationality of the relevant State to determine the status of the official. The Commission essentially concluded that nationality is not significant regarding the status of the official. However, this conclusion can be drawn only from fragmented commentaries and is not backed in practice. On the issue whether ultra vires acts can be considered official acts for the purposes of immunity from foreign criminal jurisdiction, she suggested the Commission return to this issue during the second reading. She also pointed out that the best form for the final product of the Commission could be draft guidelines, which would serve as a vade mecum where the competent authorities of the forum State and the official's State can find responses to practical issues while exercising criminal jurisdiction.
Turning to the “Sea‑level rise in relation to international law”, she acknowledged the significance of Statehood and agreed with the conclusion of the multifaceted nature of the criteria of State. She noted that a selection of options for Statehood is linked to agreements between relevant States, however, did not rule out the possibility of establishing sui generis legal regimes. She spotlighted the significance of measures that mitigate the impact of sea level rise, including costal resilience, which can be implemented through international cooperation. On the protection of the people affected, she outlined the issue with the protection of people in situ and when relocated. She, thus, suggested to include the matters related to statelessness and status with irrelevant criteria of achieving refugee status.
Ms. CACERES NAVARRETE (Chile), addressing "Immunity of State officials from foreign criminal jurisdiction", spotlighted draft article 18, paragraph 2, which regulates the settlement of disputes between the forum State and the State of the official, noting that, while the reference to a "reasonable time frame" is an expression frequently used in international conventions, it does not provide legal certainty, and can lead to unnecessary delay in the procedure and give rise to discrepancies regarding the qualification of how reasonable a time frame is. A specific, short and sufficient time frame must be indicated to facilitate efforts in reaching a mutually acceptable solution before submitting the dispute to a binding forum.
Turning to “Sea‑level rise in relation to international law”, she said it would be extremely useful for the next stage of the Study Group's work to focus more on analysing the mechanisms and legal frameworks potentially applicable to the protection of persons affected by sea‑level rise. Outlining her delegation’s other views on the topic, she said the Study Group’s future must conduct an in‑depth analysis on the conditions and practical implications of the notion of continuity of Statehood.
THARARUT HANLUMYUANG (Thailand), speaking on “Immunity of State officials from foreign criminal jurisdiction”, underscored the necessity to strike the right balance between according immunity from foreign criminal jurisdiction to State officials and ending impunity. It must also take into account respect for the principle of the sovereign equality of States when determining and applying immunity, she noted. She also described the procedural safeguards in part 4 of the draft articles as crucial to the protection of States’ rights and interests in a manner which ensures transparency and due process.
Turning to “Sea‑level rise in relation to international law”, she urged the Commission to chart practical ways forward for the international community to address existing gaps and protect affected persons. She also reiterated the rights of States in relation to maritime zones and boundaries as guaranteed by the Law of the Sea Convention. The continued recognition of already established maritime boundaries as final and unaffected by sea‑level rise is an essential element for the maintenance of international peace, security and stability. The Commission must ensure that any work of this topic is based on the practices of States and reflects the voices and concerns of Member States, she emphasized.
AHMED ABDELAZIZ AHMED ELGHARIB (Egypt), on “Immunity of State officials from foreign criminal jurisdiction”, highlighted the points and concerns his delegation previously raised, particularly during the seventy‑fourth session. The Commission should exercise the utmost caution and due diligence in its consideration of this sensitive topic, and should target the codification of lex lata, rather than developing new legal rules that some might consider to be lex ferenda. While welcoming the inclusion of Procedural Provisions and Safeguards, he emphasized the need to distinguish between those pertinent to immunity ratione personae and immunity ratione materiae. This is important because of the different character of such immunities and of the categories of individuals enjoying the same. Detailing concerns over certain draft articles, he underscored that non‑consensual legal proposals ‑ which could heighten tensions between States and undermine established customs and principles ‑ are the “last thing we need”, given the current state of international relations. He urged the Commission to seriously consider the concerns and observations submitted by Member States on this item.
On “Sea‑level rise in relation to international law”, he stressed the importance of the Commission’s work. Noting the imminent commencement of the 2022 United Nations Climate Change Conference in Sharm El Sheikh, he reiterated the need to take urgent, effective measures, “as our planet cannot withstand any more delay or reluctance”. Developing States must receive as much support as possible for adaptation and resilience projects and advanced countries should honour their pledges by doubling funding for such projects by 2025. He voiced his support for the Secretary‑General’s appeal for 50 per cent of total climate funding to be directed to such projects, which are part of the global response to the repercussions of climate change. He also added his support for the Commission’s essential, complementary role in determining the legal consequences of sea‑level rise and protecting the rights of communities and persons affected by this phenomenon.
RIPOL CARULLA (Spain), speaking on “Immunity of State officials from foreign criminal jurisdiction”, said that the draft texts differentiate between the immunities related to Heads of State, Heads of Government, Ministers and States officials. In this regard, Heads of State, Heads of Government and Ministers benefit from immunity ratione personae only during their term in office, regarding all actions carried out private and official during their mandate. State officials, however, are subject to immunity ratione personae only for actions carried out in their official capacity. Their immunity does not include actions carried out in their private capacity, nor actions taken before their term. He also called the inclusion of draft article 7 “timely” in relation to the list of crimes of public international law for which immunity of ratione materiae does not apply. Turning to part 4, he noted that the procedural rule compiled in the latter could contribute to resolving the important aspects of the immunity, including the need to combine the law of the State of immunity with the law of the foreign State in its right to exercise jurisdiction. The drafts take into consideration the principle of accountability and combatting against impunity, which provides it with a solid basis.
Turning to “Sea‑level rise in relation to international law”, he noted that it would be complicated to reduce or eliminate any of the questions studied in this regard. He, thus, suggested to establish priorities within the questions. Recognizing that the matter of rising sea levels is of crucial importance for small island developing States, he said that these issues must be “at the very heart of the study of this question” and the exceptional situation of these States should be taken into consideration.
KENNETH WELLES (Federated States of Micronesia), aligning himself with the Alliance of Small Island States and the Pacific Small Island Developing States, addressed “Sea‑level rise in relation to international law”. He spotlighted the second issues paper, citing: “with regard to small island developing States whose territory could be covered by the sea or become uninhabitable owing to exceptional circumstances outside their will or control, a strong presumption in favour of continuing Statehood should be considered.” In this regard, his country cannot accept any interpretation of international law that deprives it of Statehood and its rights and entitlements “simply because we lose land territory due to the actions and omissions of others, particularly those of developed countries and other major emitters of greenhouse gas emissions,” he stressed. The second issues paper lists alternatives that might allow a State to maintain some form of international legal personality without territory, including entry into an association by that State with one or more other States. This seems to be modelled at least in part on the three Compacts of Free Association that Palau, Marshall Islands, and his country entered into with the United States. Those Compacts were entered into between sovereign and independent States and anticipated that all parties will retain their Statehood without diminishment during the terms of those Compacts, he said, adding that they do not and will never represent the diminution or extinguishing of any element of the international legal personality of Statehood of any of the parties.
MAREK ZUKAL (Czech Republic), speaking on “Immunity of State officials from foreign criminal jurisdiction” concurred that the draft article 7, in principle, properly reflects existing norms on the absence of immunity ratione materiae when crimes, as well as so‑called official crimes defined in relevant treaties, are committed. He further expressed doubt with regard to the concept and content of part 4 of the draft text on Procedural Provisions and Safeguards. Regarding immunity ratione materiae, he noted that in the vast majority of cases, foreign State officials enjoying immunity ratione materiae may be fully subject to the criminal jurisdiction of foreign States without any immunity being applicable. This fact was not taken into account in the draft provisions. He also pointed out that the work on the procedural aspects of the immunity of State officials should be more focused on the relevant practice of States, including on their laws on criminal procedure and decisions of national courts. Therefore, the Commission could more broadly identify the non‑binding good practices based on the application of existing rules.
Turning to “Sea‑level rise in relation to international law”, he said that for low‑lying and small island developing States, the threat posed by rising seas is existential in nature. The questions of existence, continuity or discontinuity of a State involve high degree of politically sensitive considerations, which must take into account specific situation of each individual case. In this regard, he encouraged the Commission and the Study Group to embark, as a matter of priority, on the protection of persons affected by sea‑level rise. Recognizing the existing international legal frameworks potentially applicable were fragmented and general in nature, he encouraged the Study Group to further develop them to address specific needs of affected persons.
HARIS CHRYSOSTOMOU (Cyprus), speaking on “Sea‑level rise in relation to international law”, noted that his country ‑ an island State ‑ has directly experienced the gravity of climate‑induced sea‑level rise. While he welcomed the Commission’s work to provide legal clarification regarding the possible effects of rising sea levels, he underscored the need to fully respect the letter and spirit of the Convention on the Law of the Sea in conducting such work. Further, the Commission must ensure that the content of its study in this area fully complies with the Convention. Baselines designated by coastal States must be permanent and non‑ambulatory to achieve greater predictability in maritime boundaries, pursuant to the Convention, customary international law and international jurisprudence. He also emphasized that the effects of rising sea levels on baselines should have no legal effect on the status of concluded maritime treaties and that maritime boundaries designated by international judicial bodies should also remain intact in case of rising sea levels. Pointing out that there is no binding international legal instrument that specifically addresses cross‑border movements induced by climate change or the protection of persons forcibly displaced due to the phenomenon’s adverse effects, he added that Cyprus remains interested in the development of such an initiative.
NIDAA HUSSAIN ABU-ALI (Saudi Arabia), addressing “Immunity of State officials from foreign jurisdiction”, called for the strengthening of customary international law on the subject, rather than creating new norms. She urged the International Law Commission to examine previous precedent and rely on established norms in line with international instruments. She further called for it to examine the possibility for draft articles to tackle coercive measures that can be imposed by foreign States. As well, it is important to avoid using immunity to achieve political goals and create tensions in international relations. While welcoming draft article 9, which underlines that no coercive measures be taken before examining immunity, she called for draft article 11 to be re‑examined, as immunity is presumed under the sovereignty of States. She also expressed reservations over draft article 7, reiterating the importance of respecting State sovereignty.
SHUNSUKE NAGANO (Japan), speaking on “Immunity of State officials from foreign criminal jurisdiction”, reiterated the need for the Commission to address the divergent views on draft article 7. The Commission must provide Member States with a persuasive explanation, he added.
Turning to “Sea‑level rise in relation to international law”, he said that the disappearance of a territory and relocation of a population as a result of sea‑level rise have never happened in recorded history. As affected States may lack the criteria for Statehood as set out in the 1933 Convention on the Rights and Duties of States, the Commission must further consider applicable international law on this unprecedented situation. It must also further consider applicable international law on the protection of affected persons.
MOHAMED FAIZ BOUCHEDOUB (Algeria), speaking on “Immunity of State officials from foreign criminal jurisdiction”, said that the principle of sovereign equality in exercising criminal jurisdiction constitutes the basis of the immunity of State officials from foreign international jurisdiction and gives the right to the forum States to exercise their criminal jurisdiction. He welcomed the draft articles’ provision on strengthening confidence, cooperation and agreement between the forum State and the State of the representative. The draft articles prepared the necessary legal basis to ensure that they will not be “exploited” for unilateral political purposes or used against a State official. He also underlined the progressive development of international relations when it comes to special rules governing immunity for foreign criminal jurisdiction. Such immunity is guaranteed for the officials representing their country or acting in a protection of an interest of State in any other way. He further expressed a reservation regarding draft article 7 and called upon the Commission to avoid creating new rules that contradict the rules of international law.
Turning to “Sea‑level rise in relation to international law”, he said that Algeria is a coastal State that is affected in geographical terms. For that reason, the effect of rising sea levels is of particular importance posing real and effective threats for coastal areas. Recognizing that the international community has not yet addressed the legal effects of this phenomenon, he encouraged the Study Group to come up with a final wording of its report for this issue and produce practical conclusions that provide legal solutions for States affected by sea level rise. He also called on the Commission to continue developing international law without prejudice to the rights of Member States when it comes to the delimitation of maritime zones.
ANDY ARON (Indonesia), taking up “Sea‑level rise in relation to international law”, pointed out that the global mean sea level has risen faster since 1900 than over any preceding century in at least the last 3,000 years. Under a moderate emissions scenario, the global mean sea level will likely rise by between 0.44 and 0.76 meters by 2100; however, it also could rise as much as 1.01 meters under a very high emissions scenario. He cited questions of maritime zone entitlement, loss of territory or even Statehood, migration of people, marine environment, and the distribution of fish stocks in the global ocean all the way up to marine biodiversity. It is essential for the Commission to conduct exhaustive studies focusing solely on the legal aspects of the topic, given that some aspects of the subject matter are delicate, complex and highly sensitive. When the Law of the Sea Convention was negotiated in the 1970s and 1980s, climate change was not well understood. As a result, the Convention is rather “climate silent”. Indonesia is the largest archipelagic country, he said, adding that he cannot stress enough the importance for the Commission to identify comprehensively the nexus between law of the sea and sea level rise issues and strike a balance between the need for stability and security in the law of the sea with the objective of promoting equity in responding to climate change.
JOHN MARTIN PANGIPITA (United Republic of Tanzania), aligning himself with the African Group and speaking on “Sea‑level rise in relation to international law”, pointed out that his country was a major maritime and coastal State. Therefore, he welcomed the Commission’s work on this important topic. The effects of sea‑level rise concern the very survival of small island developing States. This phenomenon is not new, he said, recalling that there have been cases where the population of an island has been evacuated to another within certain States. Emphasizing that legal minds cannot exclusively and exhaustively address this matter, he urged the Commission to consider exchanging views with United Nations agencies dealing with humanitarian affairs and displaced persons to address the likely effects of sea‑level rise on humankind. He also stressed that the preservation of maritime zones ‑ and the rights and entitlements that flow from them ‑ in the face of sea‑level rise should be considered and discussed in line with the United Nations Convention on the Law of the Sea. On that point, he underscored the Convention’s importance, particularly as it relates to maritime zones.
RASHED JAMAL IBRAHIM IBRAHIM AZZAM (United Arab Emirates), addressing “Immunity of State officials from foreign criminal jurisdiction”, said that, since 2017, draft article 7 has raised concerns, which are well‑documented in the work of the Sixth Committee and International Law Commission. Draft article 7 does not reflect existing international law nor a trend in State practice or international jurisprudence, he pointed out, adding that the relevant State practice and opinio juris is neither widespread nor uniform. He voiced support for accountability for international crimes, as well as national prosecution of international crimes; immunity is procedural not substantive. However, draft article 7 does not achieve the necessary balance between the sovereign equality of States and the fight against impunity. Noting the division between members of the Commission on the matter, he said any progressive development of international law on such an important topic should not be advanced without broad consensus and the support of most States. As such, he said he would not be able to commend to the General Assembly a set of draft articles, which contains the current draft article 7. He encouraged the Commission to listen to the views of all States in the Committee and work toward a consensus reflecting all its members' views on the important but highly sensitive issue contained in that draft article.
FRED SARAFA (Papua New Guinea), associating himself with AOSIS and the Pacific small island developing States, said the Pacific Islands Forum’s Declaration is not a formal statement on regional customary law and should not be misunderstood or misconstrued as such. The Declaration is a formal statement of Forum members’ view on how the Law of the Sea Convention’s rules on maritime zones apply in the situation of climate change‑related sea‑level rise and is firmly grounded in the primacy of that Convention as the enduring legal order for the oceans and seas. On Statehood, he emphasized that the sources of law, identified in the second issues paper to describe certain criteria for the creation of a State as a subject of international law, relate to the creation and not extinguishment of a State. Turning to the principle of permanent sovereignty over natural resources, as set forth in General Assembly resolution 1803 (XVII), adopted on 14 December 1962, he said the right to self‑determination should include that principle as a basic component and should be considered in the context of possible legal implications of sea‑level rise on statehood and international legal personality. On the protection of persons affected by sea‑level rise, he voiced support for a dual rights‑based and needs‑based approach, specifying that international law responses should be adequate and effective to meet the essential needs of the persons affected by sea‑level rise with full respect for their rights.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said that the draft articles on the prevention and punishment of crimes against humanity are a good basis to move forward. He also noted that his delegation is open to exploring a process for constructive discussion towards the codification and progressive development of international law in that area.
SAMANTHA BRAIDY SPENCE (Jamaica), speaking on “Sea‑level rise in relation to international law”, said that her country has made significant efforts to fortify its coastline, especially in areas that are highly vulnerable to erosion due to rising sea levels. The general practice uses hard interventions, including coastal armoring techniques, such as seawalls and revetments, or sand‑trapping structures, such as groynes, to protect against beach erosion or storm damage. Under the ongoing Montego Bay Waterfront Rehabilitation Project, groynes are being built and rehabilitated to reduce the loss of beachfront acreage to coastal erosion and protect valuable coastal resources along the Montego Bay waterfront and marine ecosystems in the area. On the question whether the existing international human rights law legal frameworks are applicable to the protection of persons affected by sea‑level rise, she noted that there is a need for the existing framework to be strengthened to fill the gaps and address the sea‑level rise phenomenon. In this regard, drawing attention to the scope and principles of international cooperation, she called on the Commission to elaborate on the obligations of non‑affected State, that would be required to cooperate. She also suggested a definition of a threshold to trigger the obligation, what the obligation entails and when such obligation to cooperate ends.
MATTHEW EDBROOKE (Liechtenstein), speaking on “Sea-level rise in relation to international law”, stressed that the will of those most immediately affected ‑ grounded in their right to self‑determination ‑ must be at the centre of all discussions regarding Statehood. In addition, he welcomed that the right to self‑determination was raised as an aspect listed for consideration relevant to the issue of Statehood. Further, the preservation of an affected population as a people for the purposes of exercising the right of self‑determination should be one of the main pillars of the work of the International Law Commission on the issue. He also noted the right to self‑determination also applies to the peoples of non‑self‑governing territories. In that regard, he encouraged the use of the term ‘countries’ in addition to ‘States’ where appropriate.
GADJI RABE (Côte d’Ivoire), associating himself with the African Group, and speaking on “Sea‑level rise in relation to international law”, said that his country is among the States hard hit by the phenomenon of rising sea levels, with floods costing many lives and displacement among the population of Abidjan, the economic capital of the country. The Government is committed to drastically reducing its CO2 emissions by 28 per cent and to introduce 42 per cent of renewable energies into its energy mix by 2030. The Government is relocating threatened coastal populations and building water drainage channels, wastewater pumping stations, toilets, and dredging the lagoon bottom. In July, Abidjan hosted the first “Cities COP” aiming to make the voice of metropolitan areas heard as a prelude to the upcoming 2022 United Nations Climate Change Conference in Egypt. This summit ended with the adoption of a manifesto in which mayors fight against greenhouse gas emissions in their respective municipalities and call on the countries of the North to show more financial solidarity ‑ especially since Africa is responsible for only 4 per cent of greenhouse gas emissions.
ALESSANDRA FALCONI (Peru), on “Immunity of State officials from foreign criminal jurisdiction”, welcomed draft article 7, which states that immunity ratione materiae does not apply to genocide, crimes against humanity, war crimes, apartheid, torture and forced disappearance. Such crimes are an attack on human dignity ‑ identified by the international community as grave crimes that should not go unpunished ‑ and she welcomed the Commission’s efforts towards this end. She also welcomed the relevance of incorporating procedural guarantees to avoid arbitrary application of this draft article. Noting the reasons why the crime of aggression was not included in draft article 7, she recalled that her country recently deposited its instrument of ratification to the amendment to the Rome Statute relating to that crime. This demonstrates Peru’s commitment to the search for justice and its support for human dignity, she added.
Turning to “Sea‑level rise in relation to international law”, she underscored the need to continue making progress on this front, as the international community must respond to this phenomenon’s implications for international law. Because of its breadth and scope, this issue is global in nature ‑ directly affecting over 70 States ‑ and it presents an existential threat for low‑lying and small island developing States. Noting the lack of a specific legal framework governing the protection of persons affected by sea‑level rise, she stressed the need to continue assessing universal and regional treaties relating to human rights, refugees, migration and disaster prevention and mitigation. It is also necessary to consider an international cooperation mechanism for States directly affected by the phenomenon and potential host countries. She also emphasized that it is critical to address this issue before any State suffers complete flooding or is rendered uninhabitable.
ALINA J. LLANO (Nicaragua), addressing “Sea‑level rise in relation to international law”, highlighted paragraph 191 of the report, said she agreed that any solution adopted on should be based on the principle of common but differentiated responsibilities. Noting legal solutions that have been suggested, she voiced support for compensation for international responsibility. On the protection of persons affected by sea‑level rise, she underscored that it is not necessary for land to disappear under water for there to be irreversible consequences that last over time. Desertification and soil acidification are statistically a much closer reality, with almost 80 per cent of land having deteriorated. As such, global, practical and fair solutions must be sought that can in turn be applied in the future to a situation where in a State can become partially or completely uninhabitable due to sea‑level rise or any other effect generated by climate change. That solution must allow affected peoples to have a clean, healthy and sustainable environment and enjoy their right to compensation for the harm caused, she said.
Ms. AYDIN-GUCCIARDO (Türkiye), speaking on “Immunity of State officials from foreign criminal jurisdiction”, reiterated the call to include the phrase “with the consent of the State official” in draft article 12. She also recalled the request to delete the fifth paragraph of draft article 12 (formerly draft article 11) on the grounds that neither relevant treaties nor domestic laws of States have expressly referred to the irrevocability of waivers of immunity, and that practice on this issue is limited.
Turning to “Sea‑level rise in relation to international law”, she underscored the importance of promoting international coordination and cooperation among States. She further noted that potential legal effects of sea‑level rise need in‑depth research and analysis. In this regard, she encouraged consultations and discussions on the Study Group’s analysis of the legal dimensions of sea‑level rise. Drawing attention to the second issues paper and its focus on the issue of Statehood, she called the argument “far‑fetched and hypothetical” considering that there has not been a situation of a State whose land territory has been completely covered by the sea, making it uninhabitable for its population. In this context, for maritime zones where maritime boundary delimitation has not taken place, sea‑level rise might have potential effects for the final delimitation. She pointed out that the impact of sea‑level rise on Statehood and the impact of sea‑level rise on the rights regarding maritime jurisdiction areas should be dealt with as separate issues and on a case‑by‑case basis.
DONGKYU MOON (Republic of Korea), addressing “Immunity of State officials from foreign criminal jurisdiction”, spotlighting the commentaries to the draft articles adopted this year, namely draft articles 14 through 18, noted that there was no clear explanation as to whether the Commission has intended to create desirable procedures. Within the next year, his Government will try to submit its comments after carefully examining whether any part of the current text conflicts with relevant Korean domestic laws or related international treaties concluded by the Korean Government.
On “Sea-level rise in relation to international law”, he emphasized that the loss of territory due to sea‑level rise raises the fundamental question of international law, particularly concerning State continuity. This issue is especially important, considering the reality of submerging territories currently faced by small island States. The role of the Commission on the topic should be limited to considering the legal issues that may arise from sea‑level rise rather than finding definitive solutions to resolve those issues. Moreover, the Commission should consider the different phases that the lapse of time may bring, since sea‑level rise is a gradual phenomenon, he said.
ZOE RUSSELL (New Zealand), addressing “Sea‑level rise in relation to international law”, commended the Commission for its work on this significant issue, one that is important to States and the international community as a whole. In particular, it is “close to home” for her country and its Pacific Island neighbours, some of which have been experiencing sea‑level rise nine times the global average. She also spotlighted New Zealand’s comments to the Commission on State practice regarding the law of the sea and maritime zones and welcomed the work of the Study Group. She went on to underscore the approach set out in the 2021 Declaration on Preserving Maritime Zones in the Face of Climate Change‑related Sea‑level Rise issued by Pacific Island Forum leaders. The Declaration sets out the region’s collective position on the Convention on the Law of the Sea and makes clear the intention to maintain zones without any reductions. She then spotlighted the Declaration’s endorsement by the Alliance of Small Islands States, the Climate Vulnerable Forum and the Organization of African, Caribbean and Pacific States, among others.
MARTÍN JUAN MAINERO (Argentina), addressing “Immunity of State officials from foreign criminal jurisdiction”, noted that since there is no universal multilateral treaty exhaustively regulating all aspects of the issue, existing treaties only deal with certain immunities of State officials. If State officials do not have some protection from the receiver State, they could become vulnerable to acts of pressure and coercion, which would affect the free performance of their functions. International law acknowledges there is a limit to territorial sovereignty, he noted, the immunity of a foreign State and its agents. Although it may appear solely legal in nature, there are political implications that affect inter‑State relations regarding the immunity of State officials. The international community should consider a regime for peaceful settlement of disputes between States, as noted in draft article 17.
On “Sea‑level rise in relation to international law”, he noted that it is an issue that should continue to receive serious consideration. Sea‑level rise is one of greatest threats to the growth or very survival of small island developing States, including through the loss of territory. Political aspects should be dealt with by Member States and the international community as a whole. He cited the United Nations Convention on the Law of the Sea and the Vienna Convention on the Law of Treaties as the ideal international instruments.
TZVETY KIRILOVA ROMANSKA (Bulgaria), aligning herself with the European Union and speaking on “Sea‑level rise in relation to international law”, reaffirmed her country’s position that the Convention on the Law of the Sea is the “constitution of the oceans”. Together with its implementing agreements, the Convention sets out the legal framework within which all activities in the oceans and seas must be carried out. As such, the process of deriving legal conclusions on this topic must be based on ‑ and fully respect the integrity of ‑ the relevant principles and provisions of the Convention. That instrument enshrines a delicate balance between States’ rights and obligations and, therefore, when the Commission is reviewing relevant State and regional practice and opinion juris, it should consider only that which is in line with the Convention. Noting that the Convention does not oblige State parties to regularly review and update their baselines and the borders of their maritime zones, she said that suggesting States carry out periodic review could negatively impact relations among coastal States and regional stability.
GABRIELE CACCIA, Permanent Observer for the Holy See, addressing “Immunity of State officials from foreign criminal jurisdiction”, noted that the Commission had not foreseen any exceptions or limitations, such as the ones foreseen in draft article 7 regarding the immunity of ratione personae of sitting Heads of State, Heads of Government and Ministers. Although there have been some calls to prosecute sitting Heads of State, the Commission’s approach is eminently practical and realistic, he said, pointing out that if the highest State officials were under constant threat of prosecution, it would be impossible to conduct orderly relations among States. Moreover, in the case of international or civil conflict, respecting the immunity of those officials would be a prerequisite for the negotiation of any ceasefire or any democratic transition. He welcomed the introduction of some limitations to the immunity ratione materiae regarding the most serious crimes of international concern. However, draft article 7 reflects only the developing trend in the jurisprudence of some States and does not codify current customary law and practice, he pointed out.
On “Sea‑level rise in relation to international law”, he said he agreed with the Co‑Chairs' suggestion to develop a new legal regime to protect both those who will be permanently displaced within their own country and those who would be forced to migrate to another country due to rising sea levels. As a rights‑based approach would appear insufficient to protect the victims of sea‑level rise, particularly where there is no actual link between persons in need and the States called to protect their right, he said he favoured a needs‑based approach, which would give priority to the duty to address the urgent but differentiated needs of persons requiring protection. Further, although persons displaced due to environmental reasons do not fall within the internationally‑agreed definition of refugees, the situation of those forced to leave their countries of origin due to rising sea levels is closer to that of refugees than other models examined. Hence, the provisions of refugee law could provide a useful model to develop new norms for the protection of those affected by rising sea levels, including the recognition of their right to request asylum, application of principle of non‑refoulement, and the right not to be punished for their illegal entry.
LOUREEN O. A. SAYEJ, an observer for the State of Palestine, emphasized that accountability for the most serious crimes of concern is essential for the integrity and sustainability of the international law‑based order. She noted that impunity for crimes has long haunted both the people and the development of international law. Thus, putting an end to it is a collective obligation. She affirmed that the accountability is an indispensable tool for criminalization of international crimes. “We cannot outlaw these crimes while continuing to provide immunity for perpetrators,” she said. Noting that her delegation will continue to study the draft text and will provide written comments in due course, she provided some initial remarks. Expressing support for draft article 7, she said that the crime of aggression is a supreme international crime. She, thus, encouraged its inclusion under the draft article. Recognizing that draft articles fall in the intersection of different legal regimes, she expressed appreciation to the International Law Commission on ensuring balance in this regard.
Turning to “Sea‑level rise in relation to international law”, she welcomed the list of topics identified by the Study Group on the protection of displaced persons. She also acknowledged that the International Law Commission is responding to unprecedented challenges and filling gaps that “will determine the very source of life” in the inclusive and shared framework. She said that relevant principles and rules, including international human rights law, are applicable in this regard. She also reiterated that the right to self‑determination of people is “unassailable”. “Sovereignty lies with the people,” she stressed.
CONCEPCIÓN ESCOBAR HERNÁNDEZ, Special Rapporteur on the topic “Immunity of State officials from foreign criminal jurisdiction”, acknowledged the large number of speakers showing enormous interest in the topic. The issue fully responds to the mandate of the International Law Commission to assist the General Assembly in progressively developing international law through a standard‑setting instrument. Although the meeting format did not allow for a truly interactive discussion, she said that, throughout the years, the Commission has been very conscious of all opinions, expressed orally or sent in writing, which have not been unanimous or uniform. She also commented that though not all opinions have been taken into account when drafting articles, the Commission has worked in a spirit of complete collegiality and rules of transparency, offering the Sixth Committee the reasoning behind its decisions, as well as all other available information. The time has come for Member States to assess the work of the Commission as a whole, submitting comments in writing, she said.
GALVÃO TELES, Co‑Chair of the Study Group on the topic “Sea‑level rise in relation to international law”, welcomed the high level of interest and participation in the debate on this topic. Of particular note were comments on the second issues paper on the sub‑topic of “Protection of persons affected by sea‑level rise”. She informed the Sixth Committee that she took note of suggestions, criticisms and identification of points needing further study. These will be taken into account when preparing the next issues paper on this sub‑topic. She also took note of States’ intentions to submit information on germane national practice. Such information will be important as work continues towards 2024, when the next issues paper will be prepared. In addition to the formal process in the Sixth Committee, informal work ‑ through side events, workshops and the like ‑ helps promote mutual understanding of the issues at hand, she said.
RUDA SANTOLARIA, Co‑Chair of the Study Group on “Sea‑level rise in relation to international law”, thanked all delegations for their valuable and numerous comments, as well as critical reactions, to the work and discussions of the Study Group. Sea‑level rise is a global phenomenon and is a particularly serious issue that can affect the very existence of low‑lying States and small island developing States, he stressed, affirming the Study Group’s commitment and ongoing work on the topic, with the Committee’s support. Constant interaction with Committee delegates is of crucial importance, he added. The timely receipt of States’ comments, including on an informal basis, feeds the Study Group’s work and analysis and makes it possible for them to take a progressive and prudent approach with a view to shedding light on a sensitive topic that is urgent and deserves priority treatment. He also thanked the Secretariat for its ongoing and extremely valuable support to the Study Group and its work.
Statements on Cluster 3
ODD INGE KVALHEIM (Norway), speaking for Finland, Iceland, Denmark and Sweden, addressed the topic “Succession of States in respect of State responsibility”. He noted that the report focused primarily on situations where there are several injured successor States and/or multiple responsible successor States with no new provisions added. He further expressed agreement with the approach taken by the Commission to present its work in the form of draft guidelines rather than draft articles. He pointed out that what matters is a well‑drafted and balanced set of provisions that will be useful in practice, regardless of the form.
Turning to “General principles of law”, he said that the Commission’s work should be sufficiently anchored in the primary sources of international law and the conclusions drawn should adequately relate to the practice and opinion of States. Moreover, the work on this topic should avoid an overreliance on subsidiary means for the determination of law, in the form of judicial decisions and the opinions of individual writers. While there is no formal hierarchy between the primary sources of international law, he underscored that general principles of law in practice play a subsidiary role, mainly as a means of interpretation, filling gaps or avoiding situations of non liquet. In this regard, he stressed the importance of distinguishing clearly and systematically between practice supporting the existence of a general principle and cases where invocation of the term ‘principle’ may not be intended or justifiable as a reference to a general principle within the meaning of article 38 of the Statute of the International Court of Justice.
TOH SHIN HAO (Singapore), speaking on “Succession of States in respect of State Responsibility”, shared the view that primacy should be accorded to agreements entered into by the concerned States. It is important for the output to be concise, balanced and serve as useful practical guidance to States.
On “General Principles of Law”, he noted certain principles of law do appear to support the existence of the second category of general principles, including sovereign equality, a fundamental tenet of international law which establishes the uniform legal personality of States and upon which the international legal order is built; and State consent to binding dispute settlement, which is a corollary and expression of sovereign equality. He said he agreed with concerns raised about whether there is sufficient State practice, jurisprudence or teachings to support fully the existence of the second category and to determine clearly the methodology for their identification. He also noted that the caveat ‑ under paragraph 2 of draft conclusion 7 stating that the criterion is “without prejudice to the question of the possible existence of other general principles of law formed within the international legal system” ‑ is overly broad and threatens to undermine the criterion in paragraph 1 completely.
MAHMOUD DAIFALLAH HMOUD (Jordan), speaking on “Immunity of State officials from foreign criminal jurisdiction”, thanked the Special Rapporteur for her efforts and dedication to this topic over the years, noting that she was not re‑elected last year due to her refusal to politicize or compromise her principled position on the issue of exceptions to immunity ratione materiae. Urging the Commission to continue her legacy as it considers the draft articles on second reading, he said that delegations should consider accepting procedural aspects related to immunity that provide safeguards and guarantees against politicized prosecution ‑ agreed on by the Commission ‑ as they examine the content of draft article 7. The underlying balance should be preserved to ensure respect for the rights of the State of the official, the rights of the foreign State and the rights of the official. He expressed particular concern over the crime of torture as an exception under draft article 7, as this may be abused for political purposes against officials of another State. It is important, therefore, to apply the procedural safeguards and guarantees as contained in the draft articles to avoid sham prosecutions, he added.
On “General principles of law”, he expressed doubt regarding the existence of a category of so‑called general principles of law that may be formed within the international legal system. Such a category is only advanced in literature and some academic writings and is not supported by State practice or the opinions of the International Court of Justice. The examples mentioned by the Special Rapporteur are, essentially, examples of customary rules confused as general principles of law, due in part to the language used by courts and tribunals to describe them. The criteria to determine such general principles under draft conclusion 7 will lead to further confusion with the identification of customary rules and will open the door to legal activism. Expressing hope that the Commission reconsiders its position in this regard, he said that the relevant draft conclusion should be re‑drafted as a no‑prejudice clause so as not to give an imaginary category of law more value than it deserves.
Turning to “Succession of States in respect of State responsibility”, he expressed disappointment with the outcome of this topic. The Commission, in a rush for a first reading, changed the format of the draft articles into draft guidelines without changing their content. This resulted in a disjointed set of draft articles and draft guidelines, short of first reading, that are not based on practice, which is rare in this field. This does not fulfil the Commission’s mandate, and he expressed hope that the Commission reconsiders this topic next year and removes it from its agenda.
On “Sea‑level rise in relation to international law”, he voiced his support for the Commission’s work on this important topic, which will have practical consequences for the international community’s response to this phenomenon. He stressed, however, that the Commission should exercise caution in suggesting the presumption of continued Statehood, noting that the examples contained in the second issues paper are not convincing evidence of such presumption. The goal should be to find practical legal solutions to the issue of Statehood due to sea‑level rise, he stressed.
WALTER FERRARA (Italy), addressing “Succession of States in respect of State responsibility”, welcomed the Commission’s decision to provisionally adopt the texts formerly referred to as draft articles in the form of draft guidelines, given the scarce State practice on the topic. Citing the Special Rapporteur, he said the preference expressed for a “softer outcome” has the potential to preserve the consistency of the general rules of State responsibility and to further promote the development of guidelines in fields that have not yet been regulated by international law.
On “General principles of law”, he welcomed the adoption of draft conclusions 1‑5 and 7, noting that the discussion on the nature of general principles as an independent source of international law and on the methodology to identify them should continue. The process of ascertaining the transposition of principles of domestic law into the international legal system should be made, taking into account the risk to override the will of States in the creation of norms of international law. He noted the Special Rapporteur’s view that, assuming that treaties, customary international law and general principles are not in a hierarchical relationship, antinomies should be solved in light of the lex specialis principle. The functions of general principles and their relationship with other sources of international law seem essential to clarify the nature of general principles as autonomous sources of law or as interpretative tools, he said.
SERGIO AMARAL ALVES DE CARVALHO (Portugal), on “Succession of States in respect of State responsibility”, said that the lack of coherent, consistent international practice on this topic, complicates any codification exercise. In this context, he welcomed the Commission’s decision to turn the draft articles into draft guidelines, pointing out that such output can still contribute significantly to greater clarity and understanding on this issue. He said he agreed with the Special Rapporteur’s position that the final product should be considered subsidiary in nature to agreements on succession issues between the States concerned. The concept of equity in the division of responsibilities among successor States is an indispensable mechanism. However, it is also important to examine more closely how that concept has been used in historical examples of State succession, given the underlying uncertainty of the concept.
On “General principles of law”, he said that this topic gives the Commission a chance to complement its existing work on other sources of international law and to provide added guidance on the nature, identification and application of general principles of law. The Commission plays a fundamental role as an active interpreter and guiding body and, therefore, should present clear solutions relating to the sources of international law. While studying this topic, the Commission should avoid establishing a hierarchy between sources of international law and, on that point, he welcomed draft conclusion 11, which affirms the absence of such a hierarchy. For Portugal, general principles of law set the ethical‑normative scene for other norms and have a supplementary function of filling gaps in international law, he said, adding that, in this sense, the issue requires further analysis by the Commission, he added.
Mr. EVSEENKO (Belarus), addressing “Succession of States in respect of State responsibility”, called for a cautious and balanced approach, especially when the predecessor State has ceased to exist. Given the complexity of the issue and the fact that issues of succession of responsibility are settled on an ad hoc basis, agreements between the States concerned must play a leading role, he stressed. An internationally wrongful act committed before the moment of succession remains attributable to the State that committed it. He affirmed the need for a comprehensive analysis of general principles of law in the context of international law, given the complexity of the topic.
Turning to “General principles of law”, he said that those principles should be universally recognized; the issue should not be limited to separate groups of States, for example civilized ones or individual legal systems even they are supposed to be fundamental. General principles of law are universal and should form the basis of all legal systems without any exception, both in international law and the legal systems of States. These should not be secondary rules, but should reflect a universal consensus of the international community as a whole in order to give added value to the work of the Special Rapporteur, he said.