International Court of Justice President Voices Support for Redrafting Statute, Charter with Gender-Inclusive Language, in Annual Visit to Sixth Committee
Debate on International Law Commission’s First Cluster Continues, as Delegates Tackle Sea-Level Rise, General Principles of International Law
The Sixth Committee (Legal) welcomed the outgoing President of the International Court of Justice today according to its annual tradition, who reflected on the future of the Court where she has served for over 13 years.
“As my term on the Bench of the Court approaches its end, it is perhaps only natural to turn my mind to what lies ahead for the principal judicial organ of the United Nations,” Justice Joan E. Donoghue remarked, reporting that the Court’s docket currently comprises 20 cases from all regions of the world and involves a wide range of legal issues.
Giving a detailed overview of several issues before the Court, including the matter of jurisdictional basis invoked by applicants, she also recalled that, in 2011, the Court had issued 2 judgments and 11 orders. In 2022, it practically doubled its output by rendering 4 judgments and some 28 orders. However, the resources available to the Court have only marginally increased. She expressed hope that a briefing for Sixth Committee experts focused on budgetary matters will be organized in 2024.
Turning to the question of how — if it all — the Court’s Statute should be revised, she said, among other things, that “it is time to redraft the Statute, and indeed the entire Charter, in a gender-inclusive manner”. She also recalled that well over half of the UN membership have participated in proceedings before the Court since her election in 2010. Expressing hope that such exposure will lead States to continue trusting and supporting the Court, she added: “I have been very fortunate to serve on the Court over a period with such a large and diverse docket.”
The Sixth Committee also resumed its consideration of the first cluster of topics from the International Law Commission’s annual report. (For background, see Press Releases GA/L/3698 and GA/L/3699.) Among such topics was “Sea-level rise in relation to international law”, on which speakers discussed the role that should be played by the 1982 United Nations Convention on the Law of the Sea and underlined the need for legal stability in this context.
Peru’s representative spotlighted the existential threat to low-lying coastal States, particularly small island developing States. Land may become totally or partially covered by the sea or even become uninhabitable, and people would be subsequently displaced with consequences for their human rights. It is therefore necessary to continue examining the concept of legal stability and its consequences, keeping in mind the Law of the Sea Convention and customary law.
Similarly, the representative of Thailand said that rising sea levels directly affect statehood and may force individuals to become “climate migrants”. No State — regardless of economic power, geographic size or military might — is immune from the impacts of this phenomenon. Reiterating the importance of legal stability regarding maritime boundaries, she added that States’ sovereign and jurisdictional rights in maritime zones — as guaranteed by the Law of the Sea Convention — must be protected.
On that, the representative of South Africa stressed that the Commission must consider and adopt an interpretation of that Convention that guarantees legal stability and a balanced approach on baselines and maritime zones, as opposed to proposing an amendment to that instrument. As a State whose coastline stretches more than 3,000 kilometres, she said her country follows the Commission’s work on this topic with great interest.
Cuba’s representative, meanwhile, noted that the Law of the Sea Convention provides no answer to the questions raised on this issue due to the historical moment at which it was adopted. Nonetheless, he stressed that maritime baselines should not suffer changes due to rising sea levels. For its part, the Government is working to address the potential displacement of 41,000 people living in coastal areas that could disappear with rising sea levels, he said.
Delegates also addressed the topic “General principles of law”, diverging over the nature of such principles and their appropriate place within the international legal system.
The representative of India, noting the lack of clarity as to what constitutes a general principle of law, suggested that the Commission consider a definition to clarify the scope of its work on this topic. She also underscored the need to draw from developing countries’ different legal systems and cultures when determining principles common to the world’s legal systems.
Cameroon’s representative, however, noted that the Commission’s draft conclusions on this topic do not specify what is meant by a “principle common to the various legal systems of the world”. Differing sources and modalities of formation for such principles suggest that they do not share the same characteristics, he observed.
Nevertheless, stressed Romania’s representative, general principles as a source of international law could only relate to those derived from national legal systems. She therefore expressed doubt regarding a category of such principles that derive from the international legal system, which conflates the concept with customary international law. This must be avoided for reasons of legal certainty.
Echoing that was the representative of the Russian Federation, who underlined the need to distinguish between general principles of law, principles of international law and the rules of customary international law. He expressed doubt, however, regarding the transposition of general principles of law from national legal systems to the international system. Emphasizing that this risks imposing international legal duties on States without their consent, he added: “We simply cannot agree to this.”
The Sixth Committee will meet again at 10 a.m. on Friday, 27 October, to continue its discussion of Cluster 1 from the International Law Commission’s report on the work of its seventy-fourth session.
Cluster 1 Statements
MIGUEL ANGEL REYES MONCAYO (Mexico), speaking on “General principles of law”, concurred with the use of the term “international community” instead of “civilized nations” in draft conclusion 2, as this stresses the principle of legal equality between States. He also underlined the need to ensure detailed transposition for principles deriving from national legal systems in draft conclusions 4 and 6 — along with comparative analysis in draft conclusion 5 — to determine the existence of principles common to the world’s legal systems. Such determination must not be “automatic”, he added. Stressing the importance of such analysis in different regions of the world, he further concurred that the methodology for identifying principles formed under the international legal system is similar to that for identifying those derived from national systems. He also noted the importance of draft conclusions 10 and 11, which establish general principles of law as a complement to the other sources listed in article 38 of the Statute of the International Court of Justice.
Turning to “Sea-level rise in relation to international law”, he highlighted the important mapping exercise undertaken by the International Law Commission since 2019. He also reported that, in the Latin America and Caribbean region, the Organization of American States’ Committee on Juridical and Political Affairs held a special session in May in which it considered relevant issues such as legal stability and its relationship to baselines. Noting his delegation’s additional interest in debates held on the principle of equity in the context of this topic, he said it will follow the development of the Commission’s work on Statehood and the protection of persons affected by this phenomenon. It will be “helpful to bear in mind” the decisions of different international tribunals following requests for advisory opinions on climate change, he said.
On “Other decisions and conclusions of the Commission”, he welcomed the inclusion of the topic “Non-legally binding international agreements” in the Commission’s programme of work and said his delegation will contribute to the analysis of this important topic. He also welcomed the decision to hold the first part of the Commission’s seventy-seventh session in New York in 2026, which his delegation had requested on several occasions. This will foster greater dialogue and understanding between the Commission and the Sixth Committee, allowing better knowledge of the methods, procedures and dynamics present in the Commission’s work. He therefore called for the relevant administrative arrangements to be made.
ALINA OROSAN (Romania), speaking on “General principles of law”, expressed doubt about the existence of a second category of those principles derived from the international law system. Reference to such category conflates the concept with customary international law, which must be avoided for reasons of legal certainty. General principles as a source of international law could only relate to those derived within national legal systems. While paragraph 1 of draft conclusion 11 — in line with article 38 of the Statute of the International Court of Justice — excludes a hierarchical relationship between general principle of law and treaties and customary international law, paragraph 1 of draft conclusion 10 states that general principles of law are mainly resorted to when other rules of international law do not resolve a particular issue. This requires further clarification, she stressed, noting that draft conclusion 10 should be placed earlier in text because of its importance.
Turning to “Sea-level rise in relation to international law”, she said that the work of the Commission is undertaken against the background of a multiplication of diplomatic and legal initiatives concerning the subject. More clarity regarding the legal dimension of the phenomenon is required. States need authoritative guidance on how to deal with its impacts in accordance with the provisions of the 1982 United Nations Convention on the Law of the Sea and the other relevant norms of international law. That treaty does not forbid or exclude fixing both the baselines and the outer limits of maritime zones in the context of climate change-induced sea-level rise. Yet, States might choose to update the charts and lists of geographical coordinates in line with the Convention. Any solution adopted to deal with sea-level rise must not depart from its provisions. Nevertheless, Romania is open to consider an interpretative declaration to it, she noted.
On “Other decisions and conclusions”, she welcomed the inclusion of the topic “Non-legally binding international agreements” in the Commission’s programme of work, given the proliferation — to the detriment of international treaties — of such type of instruments in international relations. The Commission should also focus on the interplay between international law and new technologies, she said, emphasizing that the international community must be equipped with a legal vision adapted to the multi-facet provocations raised by the technological advancement.
PETER KLANDUCH (Slovakia), addressing “General principles of law”, noted that his delegation now believes that the practical benefit and the need of analysing the topic on the international level is rather limited. General principles of law can be derived only from national legal systems, representing the higher degree of generalization or abstraction of existing norms and principles of a national legal order that are common to legal systems of the world. He stated it is still difficult to accept that general principles of law would be a third, completely distinct and autonomous source of rights and obligations under international law. While concurring with draft conclusion 4 to 6, he expressed doubts about the use of the term “transposition”; the term “transposability” would better reflect the nuance between the existence and the applicability of a general principle of law in the international legal order.
Taking up “Sea-level rise in relation to international law”, he recognized that the topic impacts the whole international community and requires global solutions. While noting the interest of the Commission to interpret the legal concepts encompassed in the Law of the Sea Convention, he called for preserving its integrity and the balance of rights and obligations it guarantees. He commended the analysis provided by the Study Group on the issue of legal stability in relation to sea-level rise opening the option of fixed baselines and preservation of maritime zones, which is in the interest of predictability and security in the affected regions. While further noting the suggestion for the Study Group to adopt a pragmatic approach and propose concrete solutions to practical problems caused by sea-level rise, he also called for caution when distinguishing legal aspects of this topic from issues of a policy nature.
Turning to “Other decisions and conclusions”, he noted that this topic might be beneficial mostly for the future practice of States. However, the topic indicates that it concerns the instruments beyond the reach of the international law of treaties, therefore a careful approach should be taken, especially when defining its scope. He invited the Commission to consider changing the title to “Non-legally binding international instruments”, and to consider moving the topic “Universal jurisdiction” on its active programme of work.
MARTIN SMOLEK (Czech Republic), speaking on “General principles of law”, said he agreed with draft conclusion 4, according to which the identification of such principles requires a two-step analysis. While acknowledging that general principles of law are sources of international law, he noted that they have, in practice, a supplementary role and are resorted to only occasionally or exceptionally, when other rules — treaty or customary — are not applicable. On draft conclusion 5, he pointed out that the threshold for the determination of these principles seems to be too high and may not reflect existing practice. Certain analogy made with the identification of the rules of customary international law appears to be inappropriate. Most of the general principles are universally recognized legal postulates and their identification is a result of a long process, not an “ad hoc exercise” as the draft seems to suggest. Turning to draft conclusion 7, he noted that a number of Commission members have doubts about the methodology for the identification of the second category of general principles. He encouraged the Commission to consider the suggestion that the principles formed within the international legal system are, instead, general rules of conduct that are contained mostly in customary international law.
Regarding “Sea-level rise in relation to international law”, he said that the work of the Study Group — to be of assistance for developing policies and finding legal solutions to the problems arising from the sea-level-rise — should be an objective analysis of the existing legal frameworks and their possible inadequacies to that end. Such an inventory could serve as a tool for identifying various legal solutions for specific problems caused by sea-level rise, he stated, reiterating the importance of preserving the integrity of the Law of the Sea Convention. The Convention, reflecting the customary international law of the sea, has a central role in the debates, he added.
On “Other decisions and conclusions of the Commission”, he welcomed the inclusion of the “Non-legally binding international agreements” in the Commission’s programme of work. Recalling that his country together with other States proposed to the Commission to refer to the topic “Universal criminal jurisdiction”, he welcomed its inclusion on the active programme of work. He also noted with satisfaction the establishment of a trust fund to receive voluntary contributions for assistance to Special Rapporteurs or Chairs of its Study Groups and matters ancillary thereto, reporting that Czech Republic decided to provide such contributions.
UMA SEKHER (India), underlining the importance of “General principles of law”, said that, before concluding work thereon, a “careful approach” should be taken with regard to the sources of international law. As the draft conclusions are based on a report submitted in 2022 — and no further report has been submitted to the Commission — the basis for any work on this topic should be article 38 of the Statute of the International Court of Justice, along with State practice and jurisprudence. She also said that general principles of law should not be described as a “subsidiary” source of international law; rather, “the term ‘supplemental’ source can be explored”. Further, considering the lack of clarity as to what constitutes a general principle of law, the Commission should consider a definition to clarify the scope of its work on this topic. On the determination of principles common to the world’s legal systems, she underscored the need to draw from developing countries’ different legal systems and cultures.
Turning to “Sea-level rise in relation to international law”, she noted that her country is aware of this phenomenon, as it has one of the world’s longest coastlines. She also pointed out that some States — particularly small island developing States — are currently facing the impact of sea-level rise, emphasizing that all States should commence deliberations on finding a solution to this issue. On the issue of Statehood, she said that greater caution must be exercised in “considering the presumption of continuing Statehood in favour of the States directly affected by sea-level rise”. Further, the Law of the Sea Convention must be preserved while the interests of States affected by this phenomenon are addressed in an appropriate way. She added that the Study Group should consider recent requests for advisory opinions addressed to the International Tribunal for the Law of the Sea and to the International Court of Justice.
DECLAN SMYTH (Ireland), speaking on “General principles of law”, recalled that his country questioned the inclusion of a second category of those principles derived from the international law system. Such a category in fact refers to general principles of international law that — unlike general principles of law in the sense of article 38, paragraph 1(c) of the Statute of the International Court of Justice — are inferred or induced from conventional and customary rules of international law. While general principles of international law are a primary source, general principles of law are a secondary, supplementary source of international law. He also pointed out to the anomaly between the English and French language versions of draft conclusion 7, expressed hesitation about the use of the word “transposition” in draft conclusion 6 and drew attention to a contradiction between draft conclusions 10 and 11, with their juxtaposition meriting further consideration.
Regarding “Sea-level rise in relation to international law”, he recognized that all States wish to preserve their existing maritime limits delineated in accordance with international law. The absence in the Law of the Sea Convention of an explicit obligation of States to regularly resurvey straight baselines or to deposit with the Secretary-General revised charts or lists of coordinates is helpful in developing a pragmatic solution. A promising alternative could be to draw on the precedent created by the two decisions of State parties to the Convention on the interpretation of its provisions relating to the work of the Commission on the Limits of the Continental Shelf. Such a decision could proclaim, for instance, that baselines established by a State party in line with the Convention on the date on which it entered into force for that State is to be regarded as permanent, he said.
On “Other decisions and conclusions”, he welcomed the plans to commemorate the seventy-fifth anniversary of the Commission. Also commending the progress in catching up with the backlog of the Yearbook of the International Law Commission, he reported that, this year, his country provided a voluntary contribution to the trust fund to address this issue. The International Law Seminar is integral to the promotion of international law, as it gives opportunities to young lawyers, especially from developing countries, to learn about the Commission’s work and deepen their general understanding of international law. As the Seminar’s finances have been adversely affected, he encouraged Member States to follow Ireland’s example and provide a voluntary contribution to this activity.
ALESSANDRA FALCONI (Peru), addressing “General principles of law”, emphasized that it is important that draft conclusion 3 reflects two categories: those derived from national legal systems, and those that can be formed within the international legal system. She further highlighted the importance of conclusion 4, which addresses the requirements for identifying general principles derived from a national system. Ascertaining the existence of a principle common to the different legal systems of the world and verifying their transposition to the international legal system seems an appropriate way to determine their existence and content, she said. She further welcomed the absence of the term “civilized nations”, as “international community” is more appropriate, although “recognized by States or recognized by State practice” could also be used.
On “Sea-level rise in relation to international law”, she deemed it necessary to continue examining the concept of legal stability and its consequences, keeping in mind the Law of the Sea Convention and customary law. She underlined the existential nature of the phenomenon for low-lying coastal States, and in particular, small island developing States. She highlighted the very serious implications — as their land surface may be totally or partially covered by the sea or become uninhabitable, along with the displacement of people and the consequences for their human rights. Regarding the discussions held in the Study Group on the fundamental change in circumstances, she voiced agreement with the majority opinions expressed that the principle would not apply to maritime borders, since it is vital to guarantee their legal stability. She further welcomed the considerations expressed regarding the concept of equity and the sovereignty of States over natural resources.
Turning to “Other decisions and conclusions”, she welcomed the decision to explore in a permanent programme of work, the revitalization of the working methods of the Commission, as well as the relationship of the Commission with the General Assembly, particularly the Sixth Committee. She further welcomed the recommendation of the Commission to hold the first part of its seventy-seventh session in 2026 in New York, with a view to strengthening dialogue between the Commission and the General Assembly.
ANTON KORYNEVYCH (Ukraine), addressing “General principles of law”, said that draft article 7 reflects customary international law as it embodies non-applicability of immunity ratione materiae to the crime of genocide, crimes against humanity and war crimes. However, as currently drafted, it fails to include the crime of aggression into the list of crimes to which functional immunity does not apply. Noting that the Commission decided to exclude the crime of aggression from the list — inconsistently with the reasoning in the draft article’s commentary — he said that none of its arguments explain the distinction being made to the application of functional immunity to the crime of aggression and to other crimes. While the Commission was unable to present reasons for that exclusion, there are strong arguments in favour of recognizing the non-applicability of functional immunity to crimes under international law, including the crime of aggression, he stressed. To recognize the absence of immunity ratione materiae relating to the crime of aggression would be in conformity with the teleology behind the criminalization of a certain type of conduct directly under international law and the practice concerning the inapplicability of immunity to those crimes. More so, the inclusion of this crime will be in conformity with the Commission’s previous work, he noted, observing that its absence in paragraph 1 was a matter of disagreement among its members. To avoid inconsistency in the treatment of crimes under international law and to confirm the principle of accountability for all crimes, the Commission must encompass the crime of aggression in the respective draft article, he stated.
SUPHANVASA CHOTIKAJAN TANG (Thailand), speaking on “General principles of law”, reiterated that the criteria for determining such principles must be clear and distinct from the elements required for the emergence of rules of customary international law. On that, she observed that the suggestion that general principles of law may be formed within the international legal system could risk conflation with the formation of customary international law. She welcomed the Commission’s acknowledgement of debate on this doctrine in the draft conclusions’ commentaries. She also emphasized that any determination of the existence of general principles of law must include a comparative analysis of various legal systems in a representative, inclusive manner. Further, such determination must duly consider the variety among legal systems — along with their specific intricacies and characteristics — to ensure that such a principle is widely recognized among nations.
Turning to “Sea-level rise in relation to international law”, she underscored that no State — regardless of economic power, geographic size or military might — is immune from the impacts of rising sea levels. The phenomenon directly affects Statehood and may force individuals to become “climate migrants”, she added. Reiterating the importance of legal stability, she said that maritime boundaries — once determined through treaties or the decisions of international courts and tribunals — shall be final, regardless of sea-level rise. Further, the sovereign and jurisdictional rights of States in maritime zones, as guaranteed by the Law of the Sea Convention, must be protected. She also welcomed the Commission’s work on issues related to Statehood and the protection of persons affected by sea-level rise, noting that there is no legally binding international instrument governing such protection. As such, the Commission’s suggestions will be invaluable as States consider how to solve this urgent, timely issue.
On “Other decisions and conclusions of the Commission”, she welcomed the Commission’s work relating to non-legally binding international instruments, which will be of great practical use as many countries use such instruments in their international relations. She said her delegation is keen to follow the Commission’s work on differentiating such an instrument from a binding agreement, expressing concern that practice “may create binding obligations on States despite the topic’s name” and bypass domestic requirements otherwise incumbent on treaties. She also urged the Commission to begin work on topics that will provide greater clarity regarding international principles used in international investment agreements, which would facilitate legal certainty and promote sustainable economic growth. Among other points, she welcomed the Commission’s engagement with States, other bodies and individuals — particularly its engagement with the Asian-African Legal Consultative Organization.
KEKE MANTSHO ANNASTACIA MOTSEPE (South Africa), speaking on “General principles of law”, welcomed the formulation in draft conclusion 3 referring to “community of nations”. Such terms reflect that all nations participate equally and there should not be any kind of distinction in forming the general principles of law. The latest version of draft conclusion 7 can result in States or actors providing vague and general interpretations, she noted, urging the Special Rapporteur and the Commission to study the issue more in-depth. Draft conclusion 11 states that general principles of law — as a source of international law — are not in a hierarchical relationship with treaties and customary international law. While Article 38, paragraph 1 of the Statute of the International Court of Justice does not explicitly rank those sources, in practice treaties take precedence over customary law and both treaties and customary law take precedence over general principles, she pointed out.
Turning to “Sea-level rise in relation to international law”, she noted that States who stand to suffer the most from the phenomenon had contributed least to it. As a coastal State that occupies the most southern tip of Africa with its long coastline stretching more than 3,000 km, she said that her country follows with great interest the work of the Commission, in particular on the issue of ensuring legal certainty with a focus on baselines and maritime zones. The Commission, in providing practical guidelines, must consider and adopt an interpretation of the Law of the Sea Convention that guarantees legal stability and a balanced approach on baselines and maritime zones, as opposed to proposing an amendment to the Convention or further adaptation of multilateral agreements.
Ms. HANH DUC LE (Viet Nam), addressing “Immunity of State officials from foreign criminal jurisdiction”, affirmed that the exercise of criminal jurisdiction and the principle of territoriality are matters of domestic law — while the principles of sovereign equality and non-intervention in the domestic affairs of States belong to international law principles. Therefore, criminal jurisdiction over foreign officials should only be exercised after resorting to consultation and exchange with the concerned Governments, through diplomatic or other official channels, with due regard to related rules of international law. Perhaps for this reason, Viet Nam experiences few practices in the exercise of criminal jurisdiction on foreign State officials, she noted.
Turning to “General principles of law”, she welcomed draft conclusion 2, in which the term “community of nations” is being used as a substitute for “civilized nations”. She further expressed support for the Commission’s assertion that all nations participate equally, without any kind of distinction, in the formation of general principles of law, in accordance with the principle of sovereign equality set out in Article 2, paragraph 1, of the Charter of the United Nations. On draft conclusion 3, she observed that there are practices in favour of this conclusion, namely that general principles of law may be formed within the international legal system. The term “universally recognized principles of law”, frequently used in Association of Southeast Asian Nations (ASEAN) instruments, in its context seemingly refers to principles governing international relations. She noted that the application of the draft conclusions to particular principles leads to unsatisfactory results, creating more uncertainty and conflict rather than reducing them.
On “Sea-level rise in relation to international law”, as a specially affected country, she emphasized the importance of examination from the legal perspective of sea-level rise and its consequences on sustainable development of States — or even the whole territory in the case of small islands States — as well as the broader stability and security of international relations. She reaffirmed the paramount significance of the Convention on the Law of the Sea in addressing maritime concerns, including those stemming from sea-level rise. Consequently, maritime boundaries established in accordance with that Convention should remain unchanged despite the effects of sea-level rise. She further underlined the principles of sovereignty over natural resources and equity in the examination and resolution of the legal consequences of sea-level rise, which, she said, are closely linked with the principle of common but differentiated responsibilities in addressing climate change.
VLADIMIR MORA (Cuba), speaking on “General Principles of Law”, said that the draft report and the draft conclusions will help to lay the foundation for filling the gaps within the conventional system. He welcomed that the Commission members agreed on taking into account the legal nature of these principles as a source of international law, noting that he is pleased that the principles common to the national legal systems are taken into consideration.
Turning to “Sea-level rise in relation to international law”, he noted that the Law of the Sea Convention provides no answer to the questions raised on this issue due to the historical moment in which it was adopted. Nonetheless, he called on States to defend the respect of its postulates regarding the maritime limits and borders, even if these undergo physical changes due to sea-level rise. Stressing that maritime border baselines should not suffer changes due to this phenomenon, he pointed out that this would imply an additional expense for small island States in addition to the insecurity that it generates, caused by the loss of natural resources. Regarding the possible extinction of Statehood caused by the loss of territory, he urged Member States to maintain the principle ensuring — should an effect of this magnitude occur — that they not lose their status as international subjects. In this regard, his Government is carrying out several national plans to adapt the impacts of the loss of coastal areas due to sea-level rise, he reported, spotlighting that one of the components of Cuba’s State plan “Tarea Vida” — Life Task — addresses the displacement of 41,000 people living in coastal areas that could disappear with the rise of the sea level.
ZACHARIE SERGE RAOUL NYANID (Cameroon), aligning himself with the African Group and speaking on “Settlement of disputes to which international organizations are parties”, expressed support for the change introduced to the title of this topic. However, he urged the Commission to be consistent in its definition of “international organizations” in its products, noting the difference between definitions of that term in its work on this topic and its draft articles on the responsibility of international organizations. He therefore encouraged the Commission to find an appropriate, operational definition that can dispel concerns and clarify which legal regimes are applicable. On “Prevention and repression of piracy and armed robbery at sea”, he suggested that the topic be reworded to account for legal differences between acts of violence committed for private purposes both outside of and within territorial waters.
On “Other decisions and conclusions of the Commission”, he underscored the need for prudence regarding the Commission’s work relating to “Immunity of State officials from foreign criminal jurisdiction” and noted great differences between States’ positions on this topic. Reiterating that immunity is a customary norm whose scope is absolute, he stressed it cannot be subject to negotiation. Immunity — stemming from the principle of State sovereignty — is a procedural obstacle to judicial action, and State practice must be protected as this is part of the Westphalian consensus. “The world is not ready to assume the consequences of the de-Westphalianization of international society,” he added, urging that the principles recognized as fundamental for the exercise of extraterritorial jurisdiction be recognized.
Turning to “Sea-level rise in relation to international law”, he stressed that this issue must be viewed from the angle of equity, as those who risk suffering the most from rising sea levels — an anthropogenic phenomenon — can least contribute to its attenuation. This topic, therefore, implicates climate justice in addition to legal stability. He went on to state that the immutability of borders is fundamental, and that maritime borders must enjoy the same stability accorded to those on land. He also said that the issue concerning uti possidetis is not the principle’s applicability to maritime borders; rather, it is an example of preserving existing borders in the interest of legal stability and conflict prevention. The idea of preserving the territorial integrity and sovereignty over natural resources of States affected by sea-level rise is to avoid a legal vacuum and conflict between States and is, therefore, a “modality of expression for preventive diplomacy”, he said.
On “General principles of law”, he expressed concern over the use of the term “community of nations”, as this is more of a sociological than a legal expression. As such, he suggested that the Commission use the term “State” — a subject of international law whose legal reality is more complete. Among other points, he noted that draft conclusions 4 and 5 do not specify what is meant by “principle common to the various legal systems of the world”, as differing sources and modalities of formation for such principles suggest that they do not share the same characteristics. He also expressed reservation regarding references to “highly qualified publicists” in draft conclusion 9, as the term “highly qualified” is relative and judgemental. Rather, the operative criteria should be the relevance of the work in question, he said, underscoring the need to consider publicists from various States to represent the various legal systems of the world in various languages.
Mr. KESSEL (Canada), speaking on “Sea-level rise in relation to international law”, noted that his country’s coastlines are the world’s longest and most diverse, with more than 243,000 km of coastlines on three oceans, including the perimeters of more than 52,000 islands. He recognized the particular concerns of many countries regarding the stability of their baselines and maritime zones in the face of sea-level rise. In Canada, isostatic rebound is pushing some stretches of the coast visibly upward. In this context, it is important to maintain stability of the jurisdiction of coastal states, preserve the legitimacy of baselines and maritime zones as well as the associated rights and entitlements established in accordance with international law, he stressed.
Turning to “General principles of law”, he pointed out that, around the world, foreign nationals are being arbitrarily arrested, detained or sentenced and used as bargaining chips in international relations. Such practices flagrantly violate the rights of those affected, subvert the independence of judicial processes and undermine shared values. He reported that since his country launched the Declaration Against Arbitrary Detention in State-to-State Relations in 2021, support for the document and the global movement condemning the practice has continued to grow. During the seventy-eighth session the General Assembly, Canada co-hosted a high-level dialogue of endorsers of the Declaration. At that event, his country announced support for a new cross-regional independent panel of eminent jurists, he said, detailing that such a panel will examine current international law applicable to the practice of arbitrary detention in State-to-State relations and consider whether any gaps exist in these legal framework.
Ms. JANAH (New Zealand), aligning herself with the Pacific Islands Forum, noted that her country and its neighbours depend on maritime zones and related resource rights for their livelihoods, economies, identities and ways of life. She welcomed the Study Group’s observation that legal stability and equity should be the guiding principles of its work on the legal consequences of sea-level rise, given their central importance in the Law of the Sea Convention. She also voiced agreement with the co-Chairs’ observation that the outcome of the Commission’s work on this topic should guarantee the sovereign rights of States over their maritime spaces. Highlighting the 2021 Declaration on Preserving Maritime Zones in the Face of Climate Change-Related Sea-Level Rise, she noted its practical approach continues to be welcomed and endorsed by the international community. In the two years since the Declaration was issued, over 100 States have endorsed the approach of not updating baselines, she added.
Mr. MUSIKHIN (Russian Federation), speaking on “Other decisions and conclusions of the Commission”, welcomed the inclusion of the topic “Non-legally binding international agreements” and noted that the number of acts that States and international organizations have adopted over the last few years that are not international treaties has increased. There is a need, therefore, to clarify the legal consequences of such agreements. He reported that, when determining whether such agreements can change or add to international treaties, the Russian Federation’s practice is to refer to its Constitution, which states that only international treaties are part of the international legal system. Expressing support for reasonable limitations on the scope of this topic, he said that it should exclude from consideration agreements that bring together a number of unilateral acts, arrangements entered into with non-State entities and agreements covered by domestic law. The Commission should consider this topic in depth to inject clarity into this process and bring order to the heterogenous practice currently in existence.
Turning to “General principles of law”, he said that most previous comments made by his delegation relating to this topic “remain relevant”. Noting that there is no definition of what such principles are, he underlined the need to distinguish between them, principles of international law and the rules of customary international law. Questioning what the term “general principles of law” refers to, he said that if they are rules of international law, then they — much like treaty-based and customary rules — should be a result of States’ expression of their will. Expressing doubt regarding the mechanism of transposing general principles of law from national legal systems to the international system, he emphasized that this risks imposing international legal duties on States without their consent. “We simply cannot agree to this,” he stressed. He therefore suggested that language be added to draft conclusion 2 stating that general principles of law should not just be recognized by the community of nations, but also as principles that exist within the international legal system.
On “Sea-level rise in relation to international law”, he expressed concern that the Commission’s report states that sea-level rise is an anthropogenic phenomenon, and pointed out that determination of the cause of rising sea levels falls outside the Commission’s mandate. He also underlined the need to eschew fragmentation of applicable maritime rules and to adhere to the provisions of the Law of the Sea Convention — as well as the balance of interests struck therein. On the rights of persons affected by sea-level rise, he said it is “worthwhile” to consider the emergence of new concepts such as climate displacement, climate refugees and climate statelessness, expressing support for further work on this topic.
Finally, he said that the representative of Ukraine abused the platform of the Sixth Committee and disrespected its members by speaking on a topic neither on the Committee’s agenda for this session nor relating to the cluster under discussion today. Further, such comments were not “in the spirit of international law currently in force”, and he wondered whether that delegate’s comments would be extended to officials from his own country and to those from States “that currently sponsor the regime in Kyiv”.
International Court of Justice
SURIYA CHINDAWONGSE (Thailand), Chair of the Sixth Committee (Legal), said it is a well-established tradition that the President of the International Court of Justice pays a visit to the Sixth Committee when the General Assembly considers the Court’s annual report. “It is therefore pleasing that you have reserved some time to be with us, continuing a well-established practice,” he said, adding: “We are keen observers of the Court and always appreciate receiving a description of its activities from the perspective of the Court.”
JOAN E. DONOGHUE, President of the International Court of Justice, welcoming the occasion to celebrate and strengthen bonds between the Sixth Committee and the Court, said: “As my term on the Bench of the Court approaches its end, it is perhaps only natural to turn my mind to what lies ahead for the principal judicial organ of the United Nations, on which I have had the privilege to serve for over 13 years.”
She reported that the docket currently comprises 20 cases from all regions of the world and involves a wide range of legal issues, including the interpretation and application of international treaties on a variety of subject matters. One recent dimension of the docket that has important implication for the Court’s present and future work concerns the jurisdictional basis invoked by applicants. The Court’s jurisdiction in contentious cases derives ultimately from the consent of States, which can be expressed in different forms. Two States may also indicate their consent in a special agreement that asks the Court to adjudicate a defined dispute between them, often referred to as a compromis. In addition, a State may express its consent to the Court’s jurisdiction to decide disputes concerning the interpretation or application of a treaty, usually through a compromiser clause in that document or an optional protocol thereto.
Conforming to a study published in 2014, international treaties were invoked as the primary title of jurisdiction in approximately 40 per cent of cases, she reported, noting that the current percentage — based on 18 contentious cases — is now much higher. In two thirds of those cases, the applicants allege that the Court has jurisdiction to settle such disputes under a particular treaty on the basis of the relevant compromissory clause or optional protocol. Given that in those cases jurisdiction is limited — ratione materiae — to disputes concerning the interpretation or application of a particular treaty, she said it was necessary for the Court to examine the dispute that the applicant seeks to place before the Court in relation to the scope of the treaty in question.
Describing the questions that arise when the Court is asked to determine the scope of its jurisdiction ratione materiae, she highlighted the Court’s 2021 judgement in the case instituted against the United Arab Emirates by Qatar based on the compromissory clause in the International Convention on the Elimination of All Forms of Racial Discrimination. Pointing to jurisdiction that has developed on whether the dispute that is brought before the Court falls within the provisions of a treaty or the Court has jurisdiction ratione materiae to entertain, she emphasized that the Court should continue addressing these questions in a careful and disciplined manner. Also noting that the Court has recently been seized with two advisory opinion requests by the General Assembly, she said that it will devote a significant part of its time to these proceedings over the next two years. Its present workload is extremely large — with 20 cases on its General List; written pleadings for one case amounted to 41,000 pages. When she joined the Court in 2011, it issued two judgements and 11 orders. However, in 2022 it practically doubled its judicial output by rendering four judgements and 28 orders.
By contrast to the docket’s growth, the resources available have only marginally increased, she pointed out, reporting that in 2010, the number of posts in the Registry — the Court’s permanent secretariat – was 114; in 2023 it was increased to 117 posts. Its budget for the biennium 2010-2011 was $46.5 million; in 2023 it is $29 million on a single-year basis. The Court has been able to keep pace by reviewing its working methods and by the “exceptional dedication” of its small Registry. To that end, she expressed hope that a briefing for Sixth Committee experts focused on budgetary matters will be organized in 2024.
Turning to the question “How, if at all, should the Court’s Statute be revised”, she said that the Charter may be opened for amendment, adding: “Looking at the age range of those present in this room, I can say with confidence that, when this takes place, at least some of you will be part of shaping the future of the Charter, including the Court’s Statute.” She added: “When this happens, I hope that you’ll bear in mind a few reflections made by an outgoing President of the ICJ [International Criminal Court] in 2023.”
Highlighting the real value of the institution of the judge ad hoc, she said that the elimination of this institution could deter some Member States from consenting to the Court’s jurisdiction. Spotlighting the calls to revise the Statute to permit international organizations to be parties in contentious proceedings, she said it would be difficult to transpose much of jurisprudence that has developed under the Statute to disputes involving international organizations. One “modest amendment”, however, could be inspired by the Law of the Sea Convention, she said, noting that it could permit regional integration organizations to appear as parties in contentious proceedings before the Court in respect of matters for which their member States have transferred competence to them.
Recalling that the Court’s judges can be elected for successive terms, she said that for decades experts and close observers have noted that it could be desirable to eliminate the possibility of re-election, as a further demonstration of the independence and impartiality of Members of the Court. This idea of non-renewability, which has been adopted for judges of certain other international and regional courts, is often accompanied by a proposal to lengthen the tenure of judges to a single twelve-year term. Further, the Statute should be stripped of verbiage — in article 38 — that suggests that some States are “civilized” while others are not, adding: “It is time to redraft the Statute and, indeed, the entire Charter, in a gender-inclusive manner.” In that regard, the Court has updated its internal procedural rules to use such formulations in English and French, she said noting: “Our efforts in this regard could serve as a model for similar amendments of the Statute itself.”
She also recalled that since her election in 2010, the International Court of Justice has had before it 58 cases and 116 States, with well over half of the UN membership having participated in proceedings before it. Expressing hope that the exposure that so many States have had to the Court will lead them to continue to show their trust in it and provide it the support that is needed to allow it to meet is mandate,” she emphasized: “I have been very fortunate to serve on the Court over a period with such a large and diverse docket.”