Debating General Principles of Law, Sixth Committee Speakers Point to Little, No Uniform State Practice, as International Law Commission Review Ends
Delegates Deliberate Way Forward with Draft Texts on ‘Succession of States in Respect of State Responsibility’
Tackling the topic, “General principles of law”, the Sixth Committee (Legal) concluded its consideration of Cluster 3 of the International Law Commission’s report today — and thereby, its consideration of that report as a whole — as delegates delved into the complexity of achieving consensus on aspects of international law for which little to no uniform State practice exists. (For background, see Press Release GA/L/3673.)
The representative of Thailand, speaking on “General principles of law”, emphasized the importance of establishing clear criteria for identifying such principles. In so doing, she highlighted the necessity of performing a comparative analysis to determine the existence of a principle common to national legal systems. This analysis must address the unique characteristics of legal families across various regions of the world, she added.
Agreeing with that stance, Austria’s representative said that a comparative analysis must be conducted to determine the existence of a principle common to the world’s legal systems. Such analysis, however, should not be limited to statutory law. Rather, it must also account for the decisions of national courts, she pointed out.
The representative of Brazil stressed that this analysis must not only include different regions of the world, but also be representative of different legal cultures and languages. Noting that materials from Portuguese-speaking countries are often absent from United Nations documents, he encouraged further efforts to expand the linguistic and geographic reach of analyses of national legal systems.
Similarly, the representative of Cameroon pointed out that some legal systems are a combination of common-law and civil-law traditions or have completely different practices altogether. On that point, he underscored that, in some cases, African legal systems emerge from countries’ environments and cultures with a vast amount of rich customary law, which allows for conflicts to be resolved where the rules and procedures of modern law struggle.
Mexico’s representative, while agreeing that State practice must be taken into account, emphasized that it is not enough for a principle to be recognized internally. Its applicability in the international legal system must also be recognized, although he added that formal recognition is not required in this regard.
The representative of Poland, highlighting a further complication, pointed out that, while the Commission proposed detailed provisions to identify general principles of law derived from national legal systems, conclusions for determining their transposition to the international legal system were “short and vague”.
The Sixth Committee also considered the topic, “Succession of States in respect of State responsibility”, with delegations weighing in on the Commission’s work and the way forward on the draft texts.
Senegal’s representative stressed that the International Law Commission’s work must continue to feed on the diversity of different doctrines and legal cultures. There is a need to safeguard multilingualism in this context, and he called for deeper cooperation between the Commission and relevant African bodies.
The representative of Slovakia said that the Commission’s consideration of this important topic would help clarify the legal consequences of internationally wrongful acts committed prior to the date of succession. However, he warned against unnecessary duplication, pointing out that some of the draft guidelines address a successor State’s internationally wrongful act committed after such date. Such a situation is already covered by the Commission’s previous work.
The representative of the Republic of Korea, while stating that consistency with such previous work is important, joined others in noting the relative paucity of State practice in this area. The Commission’s work in this area will therefore not be able to produce a set of binding rules, he said, noting that the draft texts adopted so far have both provisions that are normative and recommendatory in character.
The representative of the Russian Federation, also noting that State practice is scant, pointed out that her country’s position on the Commission’s future work on this topic is unchanged. Namely, there are doubts regarding the need for – or possibility of – further work on this topic, she said.
Pavel Šturma, Special Rapporteur on the topic “Succession of States in respect of State responsibility”, thanked delegates for both their kind words and critical comments on his report. He reiterated he has always followed the views expressed in the Sixth Committee, as reflected by the change of the form of the final outcome from draft articles to draft guidelines. The Commission is in a good position to resume the work in its new composition in 2023 on the topic, he added.
Dire D. Tladi (South Africa), Chair for the International Law Commission’s seventy-third session, at the close of the annual review of the Commission’s report, stressed that only through open, honest communication can the international community arrive at — or at least approach — a determination of what constitutes a “good” Commission product. Noting the diversity of views expressed during the debate, he welcomed that, for the most part, positions were presented in a respectful, collegiate way that was “designed to build, rather than destroy”.
Expressing hope that this bodes well for future interaction between the Commission and the Sixth Committee, he also spotlighted the Commission’s concern over a lack of comments — particularly written ones — from developing States. Detailing his desire to pursue “a more equal and just world order”, he stressed that providing such comments is one way to advance this goal.
Also speaking were the representatives of Iran, Malaysia, Australia, Israel, Egypt, United States, El Salvador, Czech Republic, Estonia, Romania, Colombia, Ireland, United Kingdom, Slovenia, France, Viet Nam, South Africa, Chile, Netherlands, Federated States of Micronesia, Greece, Japan, Ecuador, Algeria, Philippines, Türkiye, Cuba, Sierra Leone, Croatia and New Zealand. An observer for the State of Palestine also spoke.
The Sixth Committee will next meet at 10 a.m. on Thursday, 3 November, to take action on draft resolutions concerning observer status in the General Assembly; hear the introduction of certain draft resolutions; take action on a draft letter concerning the United Nations common system; and commence the debate on the topic of diplomatic protection.
Statements on Cluster 3
HELMUT TICHY (Austria), speaking on “Succession of States in respect of State responsibility”, said that, while a clarification of existing practice may be valuable, the rights and obligations triggered by an internationally wrongful act concern only the State that committed it. Such rights and obligations are not transferable as a result of State succession. He also said he did not support the premise, underlying much of the Special Rapporteur’s present and previous reports, that there may be situations where the responsibility ‑ or the rights and obligations arising therefrom ‑ may be transferred from a predecessor State to a successor State as a matter of lex lata. Therefore, noting he was sceptical of attempts to draft articles that purport to codify rules that do not exist, he welcomed the International Law Commission’s decision to change course and instead prepare draft guidelines. He also noted that there have been discussions within the Commission to finalize the topic by drawing up an annex to its report. Given the complexity of this topic and the paucity of relevant practice, this would be the preferred final format, he said.
On “General principles of law”, he aligned himself with the statement to be delivered by the European Union and expressed support for the traditional, established category of general principles derived from national legal systems. He expressed doubt, however, over whether the category of principles formed within the international legal system, contemplated by draft conclusion 3, can actually be ascertained. On the determination in draft conclusion 5 of the existence of a principle common to the world’s legal systems, he said he agreed that a comparative analysis on a wide, representative basis must be conducted to determine the existence of a general principle of law. Such an analysis should not be limited to the law in the books, but also must account for decisions of national courts. He also expressed disappointment that the commentary to draft conclusion 7 merely notes that there are examples in judicial practice that appear to support the existence of general principles of law formed within the international legal system, without elaboration. He therefore urged the Special Rapporteur and the Commission to embark on a deeper study in this regard.
MOHAMMAD SADEGH TALEBIZADEH SARDARI (Iran), speaking on “General Principles of Law”, proposed that there be a distinction between “principles” and “rules”, given that principles provide the common denominator for a number of related legal rules. The notion of “general principles of law” as a source of law ‑ enumerated in article 38 of the Statute of the International Court of Justice ‑ and the notion of “principles or rules of international law” ‑ as a subcategory of customary or conventional international law ‑ should also be differentiated. The only legitimate expression of general principles are the legal principles which are recognized by all or the majority of the various national systems of law and are inherent in any legal system within the experience of States, along with principles that can be transposed to and applied at the international level as well. Thus, “general principles of law formed within the international legal system” do not and could not fit within article 38. He reiterated his country’s position that “general principles of law formed within the international legal system” could not to be considered within the scope of the topic under discussion.
Turning to “Succession of States in respect of State Responsibility”, he reiterated the view that there is a paucity and sparsity of the practice of States on the subject matter. Further, in regards to the previous work of the Commission, the international community has not yet welcomed the topic of succession of States broadly. He noted that the Vienna Convention on Succession of States in respect of Treaties has only 19 signatories and 23 parties and the Vienna Convention on Succession of States in respect of State Property, Archives and Debts has only seven parties and has not yet entered into force. In this regard, he pointed out that the time is not yet ripe enough to constitute the basis for choosing the title of “draft articles” for the topic under consideration.
NOOR NADIRA NOORDIN (Malaysia), on “Succession of States in respect of State responsibility”, echoed the sentiment of most States that neither the clean slate rule nor automatic succession could be accepted as general rules as there is no conclusiveness of State practice on this issue. With regard to whether a successor State would be responsible for a wrongful act that commences with the predecessor State and continues with the successor State, she noted that the provision should be open to further discussion and deliberation; currently, it is dealt with on a case-by-case basis and there is no clear guidance on the issue. On draft guideline 11, she said that the dissolution of a State might give rise to different kinds of legal relations. In this regard, some successor States might have a closer connection with the wrongful act or the injury than others. Concerning draft guideline 13 bis, she said she agreed that the term “wrongdoing State” is a concise way of indicating the State that was responsible for the internationally wrongful act.
Turning to “General Principles of Law” and paragraph 2 of draft conclusion 5, she said that the comparative analysis must be wide and representative, including the different regions of the world. States are deemed equal by their status under international law and is therefore juridical in nature. However, there are inequalities in areas such as geographical and population size as well as economic development. Therefore, a comparative analysis should be done not only according to different regions but also according to the economic, social and cultural relations on a State-to-State basis. In deciding which general principles of law that may be formed within the international legal system, the relevant criteria, such as variety and diversity, must be considered. The analysis should be carried out with caution in order to identify the issues raised and discussed by States involved in the context of that particular treaties, customary rules or other international instruments, she said.
CLARE SKINNER (Australia), speaking on “General principles of law”, welcomed the Commissions’ work, in draft conclusion 6, in clarifying how a general principle of law derived from national legal systems is transposable to the international legal system. She voiced her support for the conclusion that compatibility with such system is the governing criteria for determining such transposability. She also suggested that including practical examples will assist the Commission in clarifying this complex process. The Commission should continue its efforts to identify general principles of law formed within the international legal system with a view to reaching a conclusion based on State practice and the decisions of international courts and tribunals. The draft conclusions must clearly distinguish between general principles formed within the international legal system and customary international law. She added that draft conclusion 10 provides useful clarification to States, practitioners and others called upon to identify and apply general principles of law.
GALIA RIVLIN (Israel), speaking on “General principles of law”, underlined the importance of clarifying the difference between general principles of law and other sources of international law, mainly customary international law as they differ in scope and application. Reiterating her country’s reservation regarding the proposed second category of general principles, she also noted the significant disagreements on this matter within the Commission and the Drafting Committee. The absence of general agreement concerning the very existence of such a putative source of international law among States and members of the Commission calls for extreme caution when considering this matter. Commenting on draft conclusion 7, she said the expression “intrinsic” was vague and open to multiple interpretations, which may undermine the coherent application of the document. She encouraged the Commission to consider formulating a clear and precise methodology for the identification of such general principles. Regarding draft conclusion 5, she emphasized that the principle common to the various legal systems of the world could be considered as “general” per se only if it is to be found in an overwhelming number of legal systems.
Mr. ANCONA BOLIO (Mexico), addressing “Succession of States in respect of State responsibility”, noted that the draft articles on wrongful acts are very relevant in this context. He added his agreement with Commission members that it would be unnecessary to include exclusive provisions on the topic, taking into account that it already has draft articles 46 and 47. On the final form of the drafts, he said that his delegation is flexible on the various options available.
On “General Principles of Law”, he stressed that it is a profound and complex question as attested to by the different opinions within the International Law Commission itself. Moreover, this is an issue with a practical dimension, which complements other work of the Commission on international law. The work of other tribunals and courts must be taken into account, as must State practice. He said he agreed with the Special Rapporteur that it is not enough for a principle to be recognized internally; in addition, its applicability in the international legal system must also be recognized. However, this does not imply that formal recognition is required. Both the Commission and the Sixth Committee must continue to seek ways to support one another, and notwithstanding its Headquarters, the International Law Commission should continue holding sessions in New York.
AHMED ABDELAZIZ AHMED ELGHARIB (Egypt), on “Succession of States in respect of State responsibility”, noted that the nature of the Commission’s product changed from draft articles to draft guidelines. Given the special nature of this subject, this approach seems to be the most effective. He also took note of the report’s reference to “plurality” in relation to predecessor and successor States and to the concept of common responsibility, which are important issues. Welcoming the Commission’s effort to rearrange the product, he underlined the importance of avoiding ambiguity in the draft guidelines. On that point, he suggested the Commission apply one logical stream of thought to the draft guidelines, moving from simple assumptions to more-complex ones.
Turning to “General principles of law”, he welcomed the Commission’s focus on the subjects of transposition and of general principles of law derived from the international legal system. He also agreed with the merit of identifying a clear methodology to distinguish between general principles derived from the international legal system and other sources of law. There is some confusion as to whether treaties or international customs can be the sources of general principles of law. On the inclusion of a list of general principles of law in the draft conclusions, he said that the same should explain the substance of each principle listed, as they might differ from one legal system to another. He also suggested that the Commission make a greater effort to identify functions of general principles of law and their relation to other sources of international law. The current wording of draft conclusions 10 and 11 imply a contradiction regarding the existence of a hierarchy among sources of international law, he added.
DAVID BIGGE (United States), speaking on “State Succession in respect of State Responsibility”, expressed appreciation for the Commission’s moving toward draft guidelines, noting that those texts can assist in the progressive development of international law and allow for the collection of State practice on the topic without creating new rules and responsibilities. “In particular, the United States is pleased to see that more prescriptive text, such as the words “shall be,” has been replaced by “is” or “should” in the draft guidelines,” he said. However, there was concern that certain work products that are not intended to be treaties, like the draft principles on the environment in relation to armed conflict, nonetheless couch proposals for the progressive development of international law in binding terms like “shall” and “must”. Turning to the draft articles previously adopted in the last session, he said that the guidelines, where possible, should track the 2001 draft articles on State responsibility and use formulations that track multilateral conventions.
On “General Principles of Law”, he noted that a role for recognition by States that a rule has transposed to the international plane should be maintained in draft conclusions. A conflict‑based model is best for compatibility on its own terms, being consistent with conclusion 12, which incorporates the lex specialis principle. Regarding draft conclusion 7, the lack of sufficient State practice, jurisprudence or teachings to support the existence of the second category of general principles makes it difficult to determine a methodology for their identification. Under article 38 of the International Court of Justice, there is no hierarchy between treaties, customary international law, and general principles as sources of binding law. The State consent required to find a general principle is on par with that required for treaties and customary international law, even if it is not identical. There is a risk that enshrining requirements through a “foggier” general principles analysis could make it easier for parties to determine that certain principles bind States without first obtaining the necessary consent. In this regard, he suggested including “without prejudice” under draft conclusion 7 and recommended avoiding using the term “general principles” for this subtopic. Instead, he urged that this topic use the term “principles formed within the international legal system”.
LIGIA LORENA FLORES SOTO (El Salvador), on “Succession of States in respect of State responsibility” and citing the “plurality” of States voiced her support for the approach of the Special Rapporteur, since it does not mean rewriting the law of international responsibility nor raising general questions unrelated to responsibility in situations of State succession. While acknowledging the complexities that the analysis entailed in the drafts, she called for clarification in the corresponding draft commentary that particular aspects of the existence of various States in the cases of continuous or composite acts can be resolved through the general norms to State responsibility. Further, draft guidelines could extend their content, offering the opportunity to incorporate into the text the most substantial comments of the International Law Commission. This would facilitate a better understanding of their connotation, interpretation and sense when reaching final beneficiaries in the States. This is due to the technical and specialized nature of some of the Commission’s texts for people who have not followed the subject from the beginning and who may encounter difficulties when wanting to apply them.
On “General Principles of Law”, she noted that the topic represents one of the most interesting works addressed by the Commission, since general principles of law, as explained by the Special Rapporteur, provide coherence to the entire international legal system, not just limiting itself to filling vacuums. She highlighted the usefulness of what the Special Rapporteur addressed regarding the relationship between these principles with other sources of law, in that the general principles are autonomous sources that maintain their own applicability. Despite this, the principles can be codified in an international instrument or even part of international custom as a consequence of reiterated practice.
MAREK ZUKAL (Czech Republic), on “Succession of States in respect of State responsibility”, noted the decision to modify the form of the draft provisions from articles to guidelines. As this revision did not affect the content of provisions adopted during previous sessions, he recalled his delegation’s previous comments on thereon. Detailing his position on specific draft guidelines adopted by the Commission at its recent session, he said he supported draft guideline 6, which clarifies that an internationally wrongful act committed by a predecessor State, prior to the date of succession, remains attributable solely to that State. However, the fact that succession has no impact on attribution does not necessarily preclude the participation of a successor State or States in the wiping of injurious consequences of the predecessor’s internationally wrongful act. He added that, notwithstanding his delegation’s critical remarks regarding certain draft guidelines, this topic is important and worthy of continuing work, expressing hope that the Commission will accord it appropriate attention.
On “General principles of law”, he agreed with the provisions in draft conclusion 3 saying that general principles of law are derived from national legal systems. He said that he disagreed, however, with the inclusion of language in that draft conclusion assuming the existence of a parallel category of general principles that may be formed within the international legal system. Such dichotomy contradicts the notion of general principles of law, which are general not only in the sense of the highly abstract nature of their content, but also in the sense that they are common to various legal systems. The language in draft conclusion 3, along with draft conclusion 7, threatens the integrity of the notion of general principles of law by inviting fragmentation of the same. He added, for the sake of clarity, that many general principles of law that are common to national legal orders are now also inherent to the international legal system, as they are intrinsic to every legal system ‑ whether national or international.
RENÉ VÄRK (Estonia), speaking on “Succession of States in respect of State responsibility”, welcomed the Commission’s decision to format the outcome of its work into draft guidelines, rather than draft articles. Regarding draft article 6, he noted that the illegal acquisition of the territory (i.e., through illegal annexation) cannot generate the effects of succession between concerned States. He also said he was not in favour of reconsidering the number and structure of the draft articles on the content and form of legal consequences arising from State responsibility in the context of succession of States proposed by the Special Rapporteur. Instead, he suggested following the structure chosen in the articles of State responsibility for internationally wrongful acts for the sake of clarity and comparability. He further added his support for the inclusion of articles on reparations for the injured States and on the guarantees of non‑repetition, noting that, even if full reparation remains the general rule of customary law, the States concerned may arrive at an agreement that provides less than full reparation.
Turning to “General principles of law”, he underscored that clarity in the methodology for the identification of general principles of law is crucial for their proper application and functioning. He added his support for the simplification of draft conclusion 6 on the determination of transposition of general principles of law derived from national legal systems to the international legal system. Touching upon the relationship between general principles of law and other sources of law, he called for a deeper analysis between general principles of law and peremptory norms of general international law. He also supported the suggestion of merging draft conclusions 13 and 14 and avoiding “such a clear distinction” between the essential function of general principles and their specific functions.
ALIS LUNGU (Romania), taking up “Succession of States in respect of State responsibility”, acknowledged the Commission’s attention in seeking the right balance between the rule of automatic succession and the “clean slate” principle. An example of this is reflected in commentary to draft guideline 10 (as well as in other situations, presented in other guidelines), on uniting of States and emphasizing the endeavours of the States to reach an agreement on how to address the injury. The proposal underlining the need of a solution agreed between the States concerned was suitable, she noted. This solution is also to be regarded in close connection with one of the paramount premises on which the development of the work on this subject took place, namely the primary role of agreed solutions between the interested States, when dealing with this sensitive issue.
On “General Principles of Law”, she spotlighted the issue that nurtured ample debates within the Commission ‑ namely whether general principles of law, as a source of international law, could only emanate from national legal systems, or whether there is a second category, such as those derived from the international legal system. During last year’s debate, her delegation said that general principles of law as a source of international law could only relate to those general principles derived within national legal systems. She expressed serious doubts as to the existence of a second category of principles derived from the international law system. It is important not to conflate and confuse identification of general principles of law with identification of customary international law. She urged for more clarity on the relationship between general principles of law, fundamental principles of international law and different principles of various branches of international law could better substantiate the content of the Commission’s future work on this subject.
MATÚŠ KOŠUTH (Slovakia), on “Succession of States in respect of State responsibility”, said that the Commission’s consideration of this important topic would help clarify the rules governing the legal consequences of internationally wrongful acts, committed prior to the date of succession, for which the injured State did not obtain full reparation. Expressing regret that the Commission’s work on this topic will continue in the form of draft guidelines instead of draft articles, he reiterated his delegation’s position that draft articles would have been the most‑appropriate outcome. He underlined the need for the Commission to uphold the draft guidelines’ conformity with its articles on “Responsibility of States for internationally wrongful acts” and, on this point, warned against unnecessary duplication. For example, some of the draft guidelines address a successor State’s internationally wrongful act committed after the date of succession. Such a situation is fully covered by the articles on the responsibility of States, he pointed out.
On “General principles of law”, he said that this topic undoubtedly generates the interest of scholars, and that it was ‑ and will continue to be ‑ a subject of research and academic works. However, the practical need to analyse this issue on the international level is rather limited as, by its nature, it is not suitable for progressive development or codification. The question of general principles of law arises primarily for the International Court of Justice and other international judicial bodies and, therefore, the autonomy of such bodies dealing with this matter should be respected. Outlining his position on specific draft conclusions, he also said that, in relation to draft conclusion 5, a formal transposition is not a necessary requirement for the existence of a general principle of law. The determination of the existence of a principle common to the world’s legal systems is the only requirement for identifying a general principle of law, he added.
KATARZYNA MARIA PADŁO-PĘKALA (Poland), speaking on “Succession of States in respect of State responsibility”, voiced support for the Commission’s decision to change the format of its completed work from draft articles to draft guidelines. Such an approach expresses the nature of the Commission’s work in a more appropriate manner and is justified by the scarcity of State practice on this topic.
Turning to “General principles of law”, she said that the topic’s scope should include the legal nature of general principles of law as a source of international law, the identification of general principles of law, and their relationship with other sources of international law. The term “community of nations” in draft articles 2 and 7 may not be coherent with the terminology used in general international law. She suggested using instead the term “the international community of States as a whole” or possibly “the international community as a whole”. Among other comments, she said in regards to draft articles 6 and 7, that the proposal that general principles be derived directly from the international legal system raises several fundamental questions. Noting that the Commission proposed detailed provisions to identify general principles of law derived from national legal systems and rather “short and vague” conclusions on determining their transposition to the international legal system, she spotlighted the problem with draft conclusion 10. Consequently, if one agrees with the formulation that “general principles of law are mainly resorted to when other rules of international law do not resolve a particular issue in whole or in part”, it would be difficult to justify applying such an approach to the principles of international law, she said.
LUCÍA SOLANO RAMIREZ (Colombia), on “Succession of States in respect of State responsibility”, shared the position held by some members of the Commission that it is not necessary to include a provision on the plurality of States, since the particular aspects of the existence of several States in cases of continuous or composite acts could be resolved using general norms relating to State responsibility. She also acknowledged the Commission’s decision that its work on the topic will take the form of draft guidelines rather than draft articles; there is little State practice to justify the adoption of draft articles. Given the legal complexity of this issue, she called for the guidelines to be analysed holistically in light of their new legal status ‑ that is, as guidelines rather than articles.
Turning to “General principles of law”, she stressed that the issue begins with the analysis of article 38 of the Statute of the International Court of Justice; the jurisprudence of the Court must be taken into account when determining whether a principle has the character of a general principle of law. The principles, as a source of international law, must enjoy the legal authority that emanates from the main legal systems of the States of the international community. The Commission’s work should focus on the analysis of “general principles of law” and its constituent elements, as well as its practical relevance and its value as a source of international law. The Sixth Committee could benefit from a discussion on its working methods and how to avoid stalling debates on any topic of its agenda. In particular, this could be done regarding the products that emanate from the Commission, she said, adding that one mechanism could have the Commission visit New York more often.
VICTOR SILVEIRA BRAOIOS (Brazil), on “Succession of States in respect of State responsibility”, said that the Commission’s work on this topic is instrumental to identifying the rules of international law regarding a subject where State practice is limited. Recalling that the Commission has contributed to the codification and progressive development of several aspects of State succession, he said that it can contribute to filling a gap in international law. In cases of State succession, neither the “clean‑slate” rule nor automatic succession are appropriate as rules of general application. A case‑by‑case analysis will usually be required to ascertain how best to apply the general rules of State responsibility in situations of succession. He also said that the draft guidelines are non‑binding in nature and should be subsidiary to agreements concluded between affected States. In this sense, the Commission could present proposals on State responsibility in cases of merger or incorporation, provided that such proposals are also couched in non‑binding language.
On “General principles of law”, he said that draft conclusions 10 and 11 accurately confirm the absence of a hierarchical relationship between the sources of international law, and that a general principle may exist in parallel with treaty or customary rules having identical or analogous content. Draft conclusion 5 contemplates that general principles of law derived from national legal systems must be common to different legal systems around the world. However, the comparative analysis mentioned in that draft conclusion must not only include different regions of the world, but also be representative of different legal cultures and languages. As a Portuguese‑speaking country, he stressed that Brazil considers this issue important. Noting that materials from Portuguese‑speaking countries are often absent from United Nations documents ‑ with only sparse references that do not properly reflect the importance of their legal tradition ‑ he encouraged further efforts to expand the linguistic and geographic reach of analyses of national legal systems.
AOIFE NÍ CHEARBHAILL (Ireland), speaking on “General Principles of Law”, noted that the Commission has provisionally adopted draft conclusions 3, 5 and 7, notwithstanding the considerable controversy regarding the “second category” of general principles of law. Draft conclusion 3 would benefit from a more thorough examination of the case law of international courts and tribunals in order to determine whether this category can be deemed to exist. She also pointed out that the draft conclusions in their current format do not sufficiently distinguish between general principles formed within the international legal system and rules of customary international law. There is concern that the draft conclusions might blur the line between different sources of international law, rather than providing clarification. Noting that Ireland does not express a definitive view on the existence of a category of general principles of law formed within the international legal system, she suggested not to include this category in the final version of the draft conclusions. She further spotlighted a contradiction between draft conclusion 10 and 11, pointing out that draft conclusion 10 suggests that there is, in fact, a hierarchy between sources of international law, with treaty law and customary international law taking precedence. She welcomed further explanation in this regard.
DEBRA GERSTEIN (United Kingdom), on “Succession of States in respect of State responsibility”, noted that the State practice that exists, in the form of agreements seen as between States concerned, must be seen as the product of context‑specific negotiations, inevitably combining historical, political, cultural and legal considerations. She noted discussion among the Commission as the most appropriate way to proceed with this topic and the form of the final product.
Turning to “General Principles of Law”, she noted that draft conclusion 7 was adopted by the Commission despite differing views among its members, with a view to obtaining further comments by States. The question of the existence of the second category of general principles ‑ those formed within the international legal system ‑ remains contentious, both within the Commission and among States. She cited the concern raised by Commission members regarding the apparent lack of State practice, case-law and teachings to fully support the existence of such a category or the methodology for the identification of such principles. In particular, it is not clear that there is support for the notion contained in draft conclusion 7 that a general principle of law formed within the international legal system must be recognized as “intrinsic” to it. She further noted the view expressed by some Commission members that if the Commission were to conclude that there is a category of general principles of law formed within the international legal system, it must be clearly distinguished from customary international law.
Ms. CRCEK BEOVIC (Slovenia), on “Succession of States in respect of State responsibility”, said that her country ‑ a successor State itself ‑ would have preferred the Commission’s work on this topic to take the form of draft articles with commentary, as this would be consistent with its earlier work. However, Slovenia can support their formation as draft guidelines if it enables consensus. She welcomed the Special Rapporteur’s pursuit of balance between the “clean‑slate” doctrine and automatic succession, noting that the former is a genuine exception in the area of State succession that is used almost exclusively in cases of decolonization. Automatic succession, on the other hand, is an accepted rule, but has no clear confirmation in this field as State practice is relatively scarce. Noting that some of the draft guidelines constitute progressive development, she said that the rationale for the same is aptly described in the commentaries thereto. Further, the Special Rapporteur found solid ground with the use of no‑prejudice clauses and agreements among concerned States. She voiced her support for future work on this topic, noting that it would be regrettable if the Commission’s work was “left without a conclusion”.
Turning to “General principles of law”, she said the codification thereof is a challenging, complex task due to unsystematic State practice, lack of agreement on a theoretical approach and the use of different terminology. She stressed, however, that there is “no doubt” that such principles represent an independent source of international law, not to be confused with customary international law. Regarding the use of the lex specialis principle, she said that such principles are more general than other forms of international law and that they are distinguishable from treaties and customary international law. They exist parallel to other sources of international law, and are not limited to a practical, gap‑filling role. She added that the identification of general principles of law should not create a shortcut in the process of international recognition thereof.
Mr. COLAS (France), speaking on the “Succession of States in respect of State responsibility”, said that his delegation took note of the Commission’s decision to produce the final product of its work in the form of draft guidelines, not draft articles.
Turning to “General principles of law”, he encouraged the Commission to fully account for the diversity of legal systems. The distinction between the general principles “of the law” and “of law” is of paramount importance. In this regard, the Commission’s work constitutes a singular opportunity to clarify what distinguishes these two different general principles, he said, expressing disappointment over the approach the Commission is taking, which does not show due regard for this distinction. On draft conclusion 7, he noted that his delegation is puzzled by the category of general principles of law formed within the international legal system. He underscored that the general principles of law stem from national legal systems before they are transposed to the international level. This might rule out the possibility of realizing the existence of general principles law, formed directly within the international legal system. Such principles would appear to emanate from customary law, which is a distinct source of law. He expressed concern that the approach of draft conclusion 7 creates confusion between general principles of law and custom, as separate sources of law.
THI HA TRANG DAO (Viet Nam), on “Succession of States in respect of State responsibility”, stated that succession should be carried out according to committed negotiations in a freewill manner and appropriate timeframe. Automatic succession should not be applied in any case, particularly with respect to rights and obligations arising from a wrongful act of the predecessor State. She further spotlighted the need for a review of State practice, taking into account its scarcity and voiced hope that a wider range of additional relevant cases from different continents will be examined so the work will be comprehensive and consistent.
Turning to “General Principles of Law”, among the various sources of international law, she noted that they should always be considered subsidiary to treaties and customary international law. This general principle should only be considered when there are no applicable treaties and customary international law on the subject matter. She recalled her delegation’s previous statement that general principles ‑ even identified in treaties and other international instruments ‑ shall not automatically render binding effects upon other States that have not consented to be bound by the relevant instruments.
MANTSHO ANNASTACIA MOTSEPE (South Africa), on “Succession of States in respect of State responsibility”, welcomed the Commission’s decision to proceed with the preparation of draft guidelines, which demonstrates that the text is non‑binding and that the Commission does not aim to codify existing law. Rather, it is merely suggesting approaches to States. She also said that, in finalizing its work on this topic, the Commission will complement its previous work that resulted in the Vienna Conventions on Succession of States in Respect of Treaties and on Succession of States in respect of State Property, Archives and Debts. Such instruments will be relevant to the Commission’s work on this topic. She added that the Commission should consider this subject carefully, taking into account the views of States and members of the Commission, as well as the number of topics on the agenda.
On “General principles of law”, she welcomed the adoption of the draft conclusions and detailed her delegation’s position on specific provisions. With respect to draft conclusion 6, she said that the Commission should avoid creating the impression that transposition to the international legal system is either automatic or that it requires a formal act. General principles of law do not have a monopoly on filling gaps in the international legal system. As new treaties and customary law develop to address areas of international concern, the significance of general principles will fade as these gaps are filled. She added that the report does not provide an explanation on how the gap‑filling role would apply if the Commission concluded that two different categories of general principles existed.
CACERES NAVARRETE (Chile) speaking on “General principles of law”, expressed support for the argument that principles originating in domestic law should be applied and fulfil their role under article 38 of the Statute of the International Court of Justice. She highlighted draft conclusion 6 as a central element in the process of carrying a general principle of domestic law to international law. She further noted that there is a number of general principles of domestic law that cannot be transposed to the international system because their content is not compatible with the basic structures of international law. Arguing against making this transposition effective, she noted that the question of transposition can lead to differences between States with regard to its compatibility with the international legal system. Addressing the inclusion of the “second category” of principles of international law, she noted that it requires a “rigorous and precise treatment”. Since every legal system and international law are based on certain principles, as they evolve, they require and generate other principles. Recognizing that the international legal system can have its general principles, she spoke against discarding the elements which enrich the system and contribute to the dispute settlement. In this regard, the relevant point is how these principles are generated, identified and how they differ from other sources, such as treaties and custom.
PAVEL ŠTURMA, Special Rapporteur on the topic “Succession of States in respect of State responsibility”, thanked delegates for their kind words, as well as some critical comments on his report. He reiterated he has always followed the views expressed in the Sixth Committee, as reflected by the change of the form of the final outcome from draft articles to draft guidelines. On substance, he noted that all but one draft guideline were eventually adopted by the Commission. The topic is very close to being adopted on the first reading, which was not able to happen for the lack of time. Therefore, the report contains not only 11 guidelines and their commentary but also recalls six other provisions. To better understand the guidelines, they should be read in light of the structure proposed in his report. He also noted that the Commission is in a good position to resume the work in its new composition in 2023 on the topic.
Ms. MELIKBEKYAN (Russian Federation), on “Succession of States in respect of State responsibility”, said that her country’s position on the future of the Commission’s work on this topic is unchanged. State practice is scant, trends for norms of international law in this area have not been considered, and there are doubts regarding the need for ‑ or possibility of ‑ further work on this topic.
Turning to “General principles of law”, she stressed the need to abide by the meaning of the term as set forth in the Statute of the International Court of Justice. The host of comments on this topic made during the Sixth Committee’s previous session are still relevant, she added, highlighting, inter alia, those pertaining to the absence of single, unified terminology and to the methodology for identifying general principles of law. While welcoming the Commission’s further analysis of the transposition and recognition of such principles, she said that the wording of draft conclusion 6 minimizes the role of States and does not correspond to article 38 of the Statute. She also expressed doubt over provisions suggesting that general principles of law constitute a separate source of international law. Further, while there is not a formal hierarchy among sources of international law, an informal one does exist, based on the logic set forth in article 38. She added that general principles of law are a transitional or interim source of law, noting that, when such a principle is incorporated into a treaty or customary international law, it is then “swallowed” by the same.
NATCHAYA SUWANNASRI (Thailand), speaking on “Succession of States in respect of State responsibility”, took note of the Commission’s decision to change the form of the outcome of its work from draft articles to draft guidelines as well as its provisional adoption of 11 draft guidelines. Expressing the view that the evidence of State practice on this particular topic has yet to be sufficiently established, she encouraged the Commission to clearly indicate which draft guidelines are based on State practice and which reflect progressive development of international law.
Turning to “General principles of law”, she welcomed the report of the Special Rapporteur, including the respective observations and analysis, and took note of the Commission’s provisional adoption of draft conclusions 3, 5 and 7. She further emphasized the importance of establishing clear criteria for identifying general principles of law. Such criteria should not be too broad and should be carefully differentiated from required elements for the emergence of rules of customary international law. She emphasized that the distinction between customary international law and general principles of law, particularly in the context of draft conclusion 7, merits further consideration. On draft conclusion 5, she highlighted the necessity of performing a comparative analysis of national legal systems that should be address different legal families across various regions of the world, as well as their unique characteristics. Finally, she reiterated the importance of the codification and progressive development of international law.
Ms. AAGTEN (Netherlands), on “Succession of States in respect of State responsibility”, said the outcome in the form of draft articles, principles or guidelines is not suitable for the topic. In that regard, her Government does not support that outcome. More generally, the Commission may wish to evaluate and reconsider the usefulness and necessity of continuing its work on this topic before any further steps, including appointing of a new Special Rapporteur, she said.
Turning to “General Principles of Law”, she called for clarification on whether general principles of law formed within the international legal order can exist as an individual source of rights and obligations under international law. She expressed appreciation for the analysis of the Special Rapporteur on the possibility of the parallel existence of general principles of law on the one hand, and conventional and customary rules with the same content on the other. This would contribute to the understanding of general principles as an individual source of international law, in addition to the other sources also listed in article 38 of the International Court of Justice Statute. Many members of the Commission expressed doubts on draft conclusions 13 and 14 as proposed by the Special Rapporteur, she noted, adding that she shared those doubts. Draft conclusion 13 seems to imply that the primary function of general principles of law is filling gaps. However, the other functions listed in draft conclusion 14 are equally relevant, she pointed out.
MOON DONG KYU (Republic of Korea), on “Succession of States in respect of State responsibility”, welcomed the Commission’s decision to change the format of its work on this topic from draft articles to draft guidelines, which is the appropriate form for work. While consistency with the Commission’s previous work is important, he took note of the relative paucity of State practice in this area. He also said he agreed that the Commission’s work in this area will not be able to produce a set of binding rules, noting that draft articles adopted so far are mixed in nature, having both provisions with a normative and a recommendatory character. Further, he added his support for the Commission’s approach to examine the situation according to the specific categories of State succession, including by distinguishing between situations where a predecessor State may cease to exist and those where such a State continues to exist.
On “General principles of law”, he noted that draft conclusion 3 mentions not only “general principles of law derived from national legal systems” ‑ which are well‑accepted by States and scholars ‑ but also “general principles of law that may be formed in international legal systems”. The latter is dealt with in draft conclusion 7, and he recalled the heated debate about the propriety of recognizing such principles. That draft conclusion also distinguishes between sub‑types of general principles of law that can be formed in the international legal system, suggesting the possible existence of those with and without “intrinsic” characteristics. The question arises, he said, as to what is meant specifically by “intrinsic to the international legal system”. He expressed hope that the relevant commentaries will be complemented later.
Mr. ZVACHULA (Federated States of Micronesia), speaking on “General principles of law”, said that the two-step approach for the ascertainment of the transposition of principles to the international legal system is sensible for determining general principles derived from national legal systems. He further welcomed the changes made to draft conclusion 6, which retains the two-step approach, while not being overly prescriptive. He encouraged the Commission to better reflect its respective methodology in draft conclusion 5 by also referring to legal systems of indigenous peoples. Noting that his country is open to this “second category” of general principles of law, he said that he remained concerned about the difficulty of distinguishing general principles of international law formed within the international legal system from customary rules of international law. Welcoming the clarification about the absence of a formal hierarchy between general principles of law and other sources of international law, he noted that any such hierarchy can only result from the qualification of certain norms as peremptory. He also voiced support for the inclusion of the non-exhaustive list of general principles of law in the draft conclusions, noting that consideration should be given to such principles, such as the polluter pays principle; precautionary principle; and the right to self-determination of indigenous peoples and others.
ZINOVIA STAVRIDI (Greece) concurred with the Special Rapporteur’s suggestion not to include, in the final draft, articles 3 and 4 on devolution agreements and unilateral declarations respectively. The above, at least in their current wording, do not seem to have been tested against the scenario that a third State who has suffered damage from the predecessor State, does not concede to the transfer of the relevant obligations to the successor State by means either of a devolution agreement between the predecessor State and the successor State or of a unilateral declaration to that effect of the successor State. Paragraph 12 of draft guideline 12 provides that, in cases of an internationally wrongful act against a predecessor State that continues to exist, a successor State may, in particular circumstances, be entitled to invoke the responsibility of the State that committed the internationally wrongful act. The relevant paragraph 6 should also provide instances of illegal removal of property, cultural or other, from the territory which came under the jurisdiction of the successor State.
On “General principles of law”, regarding the issue of transposition of general principles of law derived from national legal systems, she said that the openness to consider a simpler and more flexible alternative for draft conclusion 6 is a positive development. She acknowledged the explanation provided by the Commission that draft conclusion 7 was merely adopted in the interest of obtaining further comments by States and that the commentary thereto is provisional and will be revisited at a later stage. However, merely stating that the international legal system, like any other system, must be able to generate general principles of law that are intrinsic to it, to conclude a contrario that the text of this provision does not exclude the existence of such principles, does not seem to be fully satisfactory.
Mr. MAEDA (Japan), speaking on “General principles of law”, welcomed progress made on this topic and expressed hope that the Commission will continue its thorough deliberations on the questions involved. Noting that the points discussed in the Commission this year remain controversial, he underlined the need to fully examine the nature and function of general principles of law. His delegation expects further explanation to be provided in the draft conclusions and commentaries thereto, he said. He also said that it would be helpful, in practical terms, if the Commission elaborated on the definitions of terms used in the draft conclusions, including that of “general principles of law”.
ANDRÉS EFREN MONTALVO SOSA (Ecuador), speaking on “General principles of law”, expressed support for the methodology used on draft conclusions 4, 5 and 6, which provides for verification of the existence of a common principle in the different legal systems and transfer to the international legal system. He also expressed support for draft conclusion 3, underscoring that this is the legal system which has the capacity to generate its own general principles of law. On draft conclusion 7, he touched upon the formulation “intrinsic to the system”, detailing that those would be principles that reflect or regulate basic characteristics belonging to international law system. He said he agreed with the approach of the Commission that the methodology, used to identify more principles of law and established in the international legal systems, was similar to that used in the case of general principles of law, which derive from national legal systems and include both an inductive and a deductive stage. In addition, he said he agreed with the analysis that the principles applied at the time of the decisions being handed down cannot be considered as conventional or customary norms and general principles of law which derive from national legal systems. He expressed support for draft conclusion 10, noting that it should reflect that the general principles contribute to the coherence of the international legal system and that they can serve for the purposes of interpretation or complement other norms of international law.
MOHAMED FAIZ BOUCHEDOUB (Algeria), on “General Principles of Law”, spotlighted their transposition into the system of international law. The Commission should adopt a method for comparative analysis, particularly from legislation and decisions of tribunals and courts, taking into account the specificities of each national legal regime to prove the existence common denominators. Such questions require further study, a particularly complex undertaking. Noting his reservations, he said that, looking back at the Statute of the International Court of Justice, general principles of law in national systems are the only ones referred to in article 38. These are rules born of customary norms and should be excluded from study to avoid any overlap with other sources of international law. He encouraged the Special Rapporteur to continue studying issues in terms of terminology to make clear distinctions between different concepts.
Turning to “Succession of States in respect of State responsibility”, he expressed support in principle for the rule that responsibility is not transferred if the predecessor State, which is not responsible, continues to exist, referring to the Vienna Conventions and noting the scarcity of State practice in that area. Experience shows that different issues pertaining to State responsibility are often resolved through negotiation. Therefore, work is not required on progressive development of this issue at this stage, he said.
Ms. ARUMPAC MARTE (Philippines), speaking on “General principles of law”, welcomed the Special Rapporteur’s listing of functions of general principles of law, including as an independent basis for rights and obligations; as a means to interpret and complement other rules of international law; and as a means to ensure the coherence and consistency of the international legal system. While agreeing that the point of departure for the Commission’s work is article 38 of the Statute of the International Court of Justice, she said that the Commission’s consideration of this topic is not limited thereby. As such, analysis of the jurisprudence of arbitral tribunals and international criminal tribunals in a report addressing general principles of law is not irrelevant. Detailing her delegation’s position on certain draft conclusions, she emphasized that the Commission’s main task is to establish clear criteria for determining when a principle in foro domestico is transposed to the international legal system.
MINE OZGUL BILMAN (Türkiye), speaking on “Succession of States in respect of State responsibility”, noted that absence of a comment or observation should not be construed as agreement with the content of the reports and references thereto. In this regard, she emphasized that the articles on responsibility of States for internationally wrongful acts are still considered as open to discussion, specifically whether and to what extent they reflect customary international law. Thus, she expressed disagreement with the conclusion that that draft articles 16 to 19 reflect existing international law. She voiced further concern regarding the differentiation between the political and legal aspects of this topic, which are largely intertwined.
Turning to “General principles of law”, she again suggested that ascertaining the recognition of the transposition of a general principle of law from domestic legal systems would be implicit. To that end, she cited the Special Rapporteur’s report that says “that implicit recognition is to be found in the framework of rules and principles of international law accepted by States, framework within which a general principle of law is to apply and fill possible lacunae”. In this regard, she called for more elaboration of the proposition that recognition of the transposition would be implicit and did not require an express or formal act. Recognizing that ultimately international instruments, in particular treaties, were proposed to be considered as evidence confirming the transposition, she inquired what would the evidence of transposition be when general principles of law assume the role of “gap‑filling that might exist in conventional and customary international law”.
CHEIKH MOHAMADOU BAMBA GUEYE (Senegal), associating himself with the African Group and speaking on “Peremptory norms of general international law (jus cogens)”, noted that jus cogens resides in the defence of the interests and values of the international community and not the interests of States considered separately. The draft conclusions constitute an important step in the right direction and can only benefit from the observations of Member States. In addition, environmental protection is important in all circumstances. He further cited new subjects of interest on the Commission’s future work programme, including “Prevention and repression of piracy and armed robbery at sea”, with regard to the situation in the Gulfs of Aden and Guinea.
On “Sea‑level Rise in relation to international law”, he encouraged the Study Group to continue its reflections both on the condition of the State and on the protection of individuals. Sea‑level rise is a global, albeit not uniform, phenomenon, particularly in view of the challenges posed by climate change. The interests and views of the exposed States, in particular small island developing States, must be properly taken into account, without prejudice to the concerns of the entire international community.
In addition, on “Immunity of State Officials from Foreign Criminal Jurisdiction”, he said his country attaches capital importance to the issue. He welcomed the draft articles submitted by the Commission, which confer personal immunity on the Head of State, the Head of Government and the Minister for Foreign Affairs insofar as they act on behalf of a State. He called for establishing an international legal framework to effectively prevent and punish the most serious crimes, citing the initiative Senegal is co‑leading with Argentina, Belgium, Mongolia, the Netherlands and Slovenia for a multilateral treaty on mutual legal assistance and extradition for the national prosecution of the most serious international crimes.
On “Succession of States in respect of State responsibility”, he said that his delegation will continue to follow the progress of the Commission’s deliberations with regard to the draft articles and the draft guidelines, while reaffirming the importance of broad and representative acceptance of such principles. He also reaffirmed that the work of the International Law Commission must continue to feed on the diversity of different doctrines and legal cultures ‑ hence the need to safeguard multilingualism in the context of the work. To that end, he called for a deeper cooperation between the Commission and the relevant African bodies.
Ms. SILVA WALKER (Cuba), on “General principles of law”, said that her delegation is satisfied with the format of the draft conclusions with commentaries for the Commission’s work on this topic. Noting that this will lay the foundation for filling gaps in existing law, she welcomed that the draft conclusions take into account principles common to national legal systems.
Turning to “Succession of States in respect of State responsibility”, she said that the responsibility of a State for an internationally wrongful act committed before succession should be evaluated in light of the articles on State responsibility, approved by the Commission as draft guidelines during its seventy-third session. She pointed out there was scant State practice on this topic, which makes it difficult to take a legal stance thereon, especially in light of the paucity of decisions handed down by international courts and tribunals that could contribute in a determinative fashion. Nevertheless, it is possible to establish general underlying guidelines applicable to succession of States with a view that responsibility is not transferred automatically, except in certain circumstances. She also emphasized the need for the Commission to maintain consistency in its work, and to carefully study the issue of responsibility, taking into account each specific type of succession.
ALHAJI FANDAY TURAY (Sierra Leone), speaking on “Succession of States in respect to State responsibility”, expressed regret that the Commission fell short of completing the first reading on the topic, but welcomed the transparency of the Commission. He underscored the importance of maintaining the guidelines consistent with the general regime of responsibility of States for internationally wrongful acts. The draft guidelines should, however, remain non-binding and subsidiary to any agreements concluded by the States concerned. With regards to the topics to be discussed by the Commission at its upcoming session, he suggested it be transparent and incisive in its decisions, taking into consideration practical perspective of the utility of the final outcome for States.
Turning to “General principles of law”, he noted that the “second category” of general principles of law has been subjected to divergent views of States. In this regard, he voiced support for this category of law, inherent to the international legal system. Recognizing the challenge in formulating a clear and precise methodology for the identification of general principles of law formed within the international legal system, he commended the “balance struck between rigor and flexibility” in their identification.
VIDOVIĆ MESAREK (Croatia), on “Succession of States in respect of State responsibility” called for the Commission to pay attention to situations in which part or parts of the predecessor State that would become the successor State could bear responsibility for international illegal acts committed not only towards/against third States, but also towards/against other successor States of the former common State.
Turning to “General Principles of Law”, he shared the general assessment that controversies over general principles formed within the international legal system are still unresolved and that additional efforts must be invested to further examine, elaborate and clarify remaining issues relating to this particular category. There should be a clear distinction between general principles and other sources of international law, especially in relation to customary law, which still is not the case. Present formulations of draft conclusion 6 and 7 are still unclear and require further consideration; it is important to clearly determine the elements necessary for the recognition of general principles formed within the international legal system. He also said that additional clarifications are also needed in relation to the transposition of general principles of law from national legal systems to the international legal system, since the crucial open issues are still left unanswered and could lead to conclusion that there are no differences between general principles of law and customary law. Noting there is no hierarchy between general principles of law, rather a principle of specialty, that latter should apply in relation to two rules of same source.
ZOE RUSSELL (New Zealand), speaking on “General principles of law”, welcomed the Special Rapporteur’s observation that recognition of applicability in the international legal system is an essential condition for determining the transposition of legal principles from national legal systems. She went on to reaffirm the position her delegation took last session regarding the category of general principles of law formed within the international legal system, namely, that such category must be clearly distinguished from the rules of customary international law.
ZACHARIE SERGE RAOUL NYANID (Cameroon), speaking on “Succession of States in respect of State responsibility”, said that draft conclusion 6 was “absolutely necessary”, as it sets forth the basic principle codified in draft article 1. The position of the Commission could be more nuanced regarding the successor State to a treaty. He noted that when a State becomes a party to a treaty, there is an automatic transition of international responsibility that stems from the violation of the treaty that was committed by the predecessor State before the date of succession. This is an issue of preserving treaty relations and ensuring legal security of international relations. In this regard, he underscored the need of continuity of legal relations advocating for transferring the consequences of the international responsibility arising from a breach of a convention to a successor State.
Turning to “General principles of law”, he underscored that these principles should be recognized by States in order to exist. He expressed a reservation with regard to the inclusion of the non‑exhaustive list of such principles, which would be incomplete and would distract attention from essential aspects of the issue. He also pointed out two types of general principles of law ‑ those established by internal legal systems, and those produced by an international legal system ‑ which are different from the fundamental principles of international law and which structure contemporary international law. On draft conclusion 4, he said he did not find it appropriate to establish a hierarchy between legal systems. There are other legal systems that have a combination of civil law and common law systems or have different practices altogether. He underscored, that in some cases, African legal systems emerge from countries’ environments and cultures with a vast amount of rich customary law that allows for conflicts to be resolved where rules and procedures of modern law struggles. He, thus, suggested to explore other avenues and possibly discover the existence of other categories of general principles stemming from national and traditional legal systems.
LOUREEN SAYEJ, an observer for the State of Palestine, speaking on “General principles of law”, said such principles are expressions of both national legal systems and international rules and principles, and the essence of all legal systems. They represent the common denominator of the community of nations, ensure the evolutionary character of international law and are not limited to “gap‑filling”. She welcomed the Commission’s reaffirmation that general principles of law are a source of international law. While they are indications of national legal policies and principles, they are only augmented by international recognition. She welcomed commentary on draft article 7, noting that the methodology will be inductive with an analysis of relevant treaties, customary rules and other international instruments, such as the General Assembly and Security Council resolutions and declarations at international conferences. Underlining the universal power of the Assembly, the enforcement power of the Council, and their indispensability to formulation of general principles of law, she noted that the texts present a good basis for future work. Her delegation looks forward to contributing to the draft articles, she said.
DIRE TLADI (South Africa), Chair of the International Law Commission for its seventy‑third session, expressed regret that he was unable to be in New York for the annual debate. He thanked delegations who took the floor in the spirit of collegiality, cooperation and a desire to ensure that the Commission’s work is of the highest standard possible. Noting that delegations had different ideas regarding the Commission’s products, he stressed that only through open, honest communication can the international community arrive at ‑ or at least approach ‑ a determination of what constitutes a “good” product. Such communication presupposes, at a bare minimum, a mutual responsiveness, rather than the bare exercise of power or influence.
Noting the diversity of views expressed during the debate, he welcomed that, for the most part, positions ‑ even in cases of strong disagreement ‑ were presented in a respectful, collegiate way that was “designed to build, rather than destroy”. He expressed hope that this bodes well for future interaction between the Sixth Committee and the International Law Commission. To that point, he said that a primary concern in the Commission is the lack of comments ‑ particularly written ones ‑ from developing States. This has pushed the Commission to reflect the views of one segment of the international community. For its part, the Commission has attempted to mitigate this by taking into account the oral statements made during debates in the Sixth Committee.
While this helps to resolve the matter, he stressed that oral statements cannot be a substitute for written comments and observations. He detailed his personal philosophy on international law, emphasizing that he has tried to break down the privileged position of some and raise the underprivileged position of others as much as possible “in the pursuit of a more equal and just world order”. While this has yet to be achieved, he said that providing written comments is one way to advance this. He added praise for the work of the Codification Division of the Office of Legal Affairs, without which the International Law Commission and Sixth Committee could not function.
ANNA PÁLA SVERRISDÓTTIR (Iceland), Vice‑Chair of the Sixth Committee, followed that statement by welcoming the rich exchange on all topics during the debate. Noting that the Commission’s important contribution to the progressive development and codification of international law “speaks for itself”, she wished that body success in its future endeavours.